Is It Harassment? | By Helene Horn Figman
Employers Must Be Staunch in Defense Against Unwelcome Behavior
Workplace harassment is unfortunately a prevalent problem, and the financial industry is no exception. Statistics from the Equal Employment Opportunity Commission (2015) show workplace harassment is alleged in approximately 30 percent of all charges filed with the agency.
Harassment has a serious impact on both employees and employers. Employees suffering from harassment may become physically ill or feel pushed out of the workplace. Effects of harassment include lowered morale and productivity, unfavorable employee relations and high employee turnover.
For many, the term “harassment” is associated with sexual conduct. Sexual harassment may take the form of unwelcome sexual advances, requests for sexual favors and other verbal or physical harassment of a sexual nature, but harassment is not limited to sexual conduct. It also encompasses unwelcome conduct based on “protected categories.” On a federal level, such categories include, but are not limited to: race, color, religion, national origin, gender, age, disability and genetic information. Certain states additionally prohibit discrimination and harassment due to sexual orientation, gender identity and military status.
Taking preventative measures to avoid harassment from occurring is far more desirable than having to fix the problem after the fact. Employers must encourage employees, through policies and training, to report harassment and discrimination. Policies should be clear as to whom an employee can go to when reporting harassment. An alternate person should also be listed, to ensure the employee is comfortable approaching someone.
Sometimes an employee will tell his or her supervisor or human resources about harassment and then ask that no action be taken. The caveat is, “I just wanted to let you know; please do not do anything.” An employer must inform the employee that such secrecy is not possible. While the employee should be told that the matter will be investigated in a professional manner and as confidentially as possible, the company cannot promise complete confidentiality. Despite the employee’s protestations, the employer’s failure to act would be tantamount to ignoring or condoning harassment. Further, this employee might just be one of many who are subject to harassment.
Recognizing harassment is no easy task. Why? Because employees often look at whether they “intended” to offend, discriminate or harass their coworkers. Have we treated our coworker the way we would want to be treated? Good intentions or making assumptions as to how others want to be treated, however, is not the standard under legal analysis. Instead, we must look at the recipients. Have we treated people the way they wish to be treated?
Consider these types of statements:
“I really like your perfume.”
“Gee, your hair smells great.”
“You look hot today.”
“You know what people say about ‘those’ types of shoes …”
Whether these statements constitute harassment will depend upon many factors including, but not limited to, the context, the tone, whether the statements were isolated or pervasive, and the reaction of the recipient. On its own, a compliment about one’s perfume may not rise to the level of harassment, but there could be instances where, as one of many comments in total, it creates a hostile environment. The other three statements could definitely be problematic. Employees that share too much information about personal sexual conduct can also create a potential sense of harassment.
Social media has made the anti-harassment arena more complex for employers to navigate. An increase in messages posted to social media has resulted in an increase in complaints by employees. Addressing employee use of social media is challenging and involves a delicate balance of prohibiting discriminating, threatening and vulgar comments while not interfering with the employee’s protected rights under the National Labor Relations Act. Implementing a policy regarding social media is critical to address this new area of risk.
Policies against sexual harassment are important in making your employees aware of the parameters of their conduct and comments at the workplace. Publication and annual presentation of the policies is advisable and even required in some states. While it is not mandatory, state and federal agencies encourage employers to conduct education and training programs on sexual harassment for all employees on a regular basis. Employers are further advised to conduct additional training for supervisory and managerial employees, which should address their specific responsibilities as well as steps that management employees should take to ensure immediate and appropriate action in addressing harassment complaints. This is significant because employers are liable for the conduct of those persons that they place in supervisory positions.
In order to avoid or diminish liability, appropriate detailed training should be conducted to show that the employer took reasonable care to prevent sexual harassment and discrimination in the workplace. Insufficient or poor training with improper or inappropriate information will not support an employer’s good faith efforts to prevent harassment or offer a reasonable defense.
Understanding harassment, issuing clear policies and conducting training are important risk management tools for all employers in banking and financial institutions.■
A member of the Massachusetts Bar for over 30 years, Helene Horn Figman is an employment law attorney who represents businesses in all types of employment law compliance and discrimination/harassment matters. She may be reached at firstname.lastname@example.org.