Personnel e.bulletin – February 2015

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Preventing Harassment in the Workplace

Prepared for the PHCC Educational Foundation by TPO, Inc.

Workplace Harassment is not an easy or pleasant topic to discuss. The very actions that constitute illegal behavior can be inconceivable. Didn’t we all grow up knowing how to treat others – with kindness and respect?  Not according to the Equal Employment Opportunity Commission (EEOC) who recently released their 2013 numbers on discrimination and harassment in the workplace. They reached their highest amount of monetary recoveries in their history, despite a decrease in the number of charges from the year before. Companies of all shapes and sizes are losing millions of dollars – $372 million in 2013.  You don’t have to be one of them, but it requires a commitment to create a harassment-free workplace.

Workplace Harassment – Basics You Need to Know
Legal Context

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful when:

  1. Enduring the offensive conduct becomes a condition of continued employment.
  2. The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
  3. An employee fears going to work because of the significant level of ongoing harassment.
  4. Harassment takes place against an individual in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit.
  5. Harassment takes place against an individual who opposes employment practices that they reasonably believe to be illegal.

Sources of Harassment – Who Can Be a Source
Harassment can come from:

  • Employer
  • Supervisor or a supervisor in another area
  • Co-worker
  • Direct report
  • Vendor
  • Customer or partner
  • Non-employee

The company responsible for all sources and types of harassment.

Types of Harassment – What NOT to Do

Sexual – Two Types
Quid pro quo
Do NOT:

  • Force a this-for-that situation in which an employee must choose between catering to unwanted sexual demands and either losing a job benefit or being punished in some job-related way.

  Hostile work environment – Do NOT:

  • Make offensive remarks about a person’s sex – it is illegal to make offensive comments about women in general.
  • Request sexual favors – verbal or physical.
  • Make unwelcome sexual advances.
  • Have photos or screensavers of any suggestive or sexual nature – they are subtle forms of illegal harassment.
  • Assume that victims are only women – they can be men, too. The victim and harasser can also be of the same sex.

Retaliation – Do NOT:

  • Demote, terminate, verbally harass or otherwise single out an employee because he/she would not submit to sexual advances or because he/she filed a discrimination complaint.
  • Retaliate against an employee acting as a witness or participating in a discrimination complaint.

Religious – Do NOT:

  • Treat any employee adversely because of their religious, moral or ethical beliefs or affiliations with religious groups.
  • Avoid making reasonable accommodations for observance of religious days and religious dress codes.
  • Disallow modes of dress unless they materially interfere with safety and productivity of others in the workplace.

Racial/Ethnic – Do NOT:

  • Treat any employee differently because of their racial or ethnic heritage.
  • Make comments steeped in stereotypical language or make jokes about race and ethnicity.

Gender – Do NOT:

  • Hire a man over an equally qualified woman solely based on gender differences.
  • Belittle or make suggestive jokes or comments about one gender or members of that gender’s ability to perform.
  • Harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.  

Workplace Harassment – Basics You Need to Do

Here are some things you must do to create a harassment free workplace:

Set the Stage

  • Send an e-mail to all staff reaffirming your company’s commitment to fair and equal treatment of employees, applicants, vendors, suppliers, and customers – post copies through workplace common areas.

Train

  • Make sure that all of your employees, from managers down to the newest hourly worker, know what workplace harassment is and that it is not tolerated.
  • Have a carefully drafted policy that every employee and new hire must read and understand – regular training sessions are best; this is a minimum standard.

Respond to Complaints Appropriately

  • Have a process in place by which employees can express their concerns confidentially, without having to involve the alleged harasser in the chain of reporting.
  • Treat every concern seriously and don’t brush off rumors without giving them the attention they deserve.
  • Know when complaints need to be escalated to a formal investigation and when to bring in legal counsel.

Be Vigilant

  • Keep an eye out for actions that just brush the line between “okay” and “not okay” and put a stop to them before they escalate.
  • Form a trusted committee to help you with your vigilance and to help each other to determine when and how to take action.


Employer Liability for Harassment

The company is automatically liable:

  1. For harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages.
  2. If the supervisor’s harassment results in a hostile work environment, and you cannot prove that you reasonably tried to prevent and promptly correct the harassing behavior – and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by you.
  3. For harassment by non-supervisory employees or non-employees over whom you have or exercise control (e.g., independent contractors or customers on the premises), if you knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.


The potential penalties and costs you face if rulings do not go your way include
back and anticipated pay, compensatory damages, reinstatement, punitive damages, and/or lawyer fees. Once again these costs can be avoided with your diligence. The best way to deal with harassment in the workplace is to avoid it entirely through training and a company culture that prevents it from ever starting.

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This content was developed for the PHCC Educational Foundation by TPO, Inc. (www.tpo-inc.com). Please consult your HR professional or attorney for further advice, as laws may differ in each state. Laws continue to evolve; the information presented is as of February 2015. Any omission or inclusion of incorrect data is unintentional. Please note this article is not intended to provide legal advice or to substitute for supervisor employment law training.

The PHCC Educational Foundation, a partnership of contractors, manufacturers and wholesalers was founded in 1987 to serve the plumbing-heating-cooling industry by preparing contractors and their employees to meet the challenges of a constantly changing marketplace. If you found this article helpful, please consider supporting the Foundation by making a contribution at http://www.phccfoundation.org.

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