This overview provides guidance for managers to recognize and address behaviors that can be construed as harassment in the workplace. For expert assistance, please contact your ProService HR Consultant.
Managers and Preventing Sexual Harassment
Employers are required by law to provide a harassment-free work environment, by addressing inappropriate or harassing behaviors when they occur, and by taking action to end the behavior and preventing it from recurring.
What Constitutes Harassment and Unacceptable Behavior?
There are two types of workplace harassment.
- Quid Pro Quo, which is Latin, meaning, “this for that.” It is a form of workplace harassment when a person's employment and/or other benefits are conditioned upon the submission to unwelcome sexual conduct.
- A Hostile Work Environment is another form of harassment when a victim is subjected to unwelcome conduct based on the person's membership in a protected class that is sufficiently severe or pervasive to create a work environment that a reasonable person would consider intimidating, abusive, or offensive.
When is Conduct Considered Severe or Pervasive?
Conduct is severe when one instance is enough to create an intimidating, hostile, or offensive work environment. An example of severe misconduct could be sexual assault.
Conduct that is not severe but still unwelcome, offensive, or intimidating can constitute harassment if it is pervasive — frequent or continuous in nature. An example of pervasive misconduct could be frequent, age-related jokes or teasing, that could make an employee feel pressured to retire.
How Do You Know What is Considered Harassment or Not?
Harassment may be verbal, written, visual, or physical in nature. Within a diverse workplace of varying backgrounds and opinions, what would be considered harassment may be different for everyone, but these questions can help.
- Is the behavior unwelcome?
- Is the behavior negatively impacting the recipient’s work environment?
- Is it related to a protected class?
- Would a reasonable person consider this harassment? Would a reasonable person consider this behavior severe or pervasive?
How Do Managers Respond to Harassment Allegations?
Properly responding to harassment claims is a key managerial responsibility. Employers that ignore complaints or fail to investigate allegations are likely to find themselves in hot water. The best way to limit liability is to take immediate action. When a company becomes aware of the potentially harassing situation, the employer must investigate and act based on the findings to ensure the behaviors end and do not reoccur.
The employer's role starts with taking immediate action to stop the behavior. Employers must investigate claims, gather information and document everything – ensuring decisions are based on facts and not hearsay. Using what was found in the investigation, determine whether or not the individual violated the harassment policy. If the harassment claims are confirmed, determine the best course of action that will stop the behavior from reoccurring, ranging from a verbal or written warning, suspension, or termination. This can also include non-disciplinary measures such as separating parties permanently, changing whom they report to, or enrolling in coaching or counseling programs. Monitor the behavior to ensure that the inappropriate conduct has stopped. Follow up with the complainant to ensure that the behaviors have stopped. If the investigation finds no harassment, the complainant should be informed of that result.
Be sure to maintain confidentiality throughout the process and afterward. Don't be careless with information or share it with anyone not directly related to the investigation.
Are Employers and Managers Liable?
Depending on the circumstances, both the employer and the manager can be held accountable in a court of law for harassment that took place, whether or not they are the perpetrator.
If a complaint is filed with the Hawaii Civil Rights Commission or HCRC, it will be under state jurisdiction. In the state of Hawaii, harassment by a manager or a supervisor is an automatic liability to the company, and the employer will be held accountable in a court of law for the harassment that took place. The state considers that if the manager knows, in effect, the company knows because the manager is an authoritative representative of the company. Therefore, the company had knowledge of the harassment occurring, and as a result, they would be automatically held liable.
If a complaint is filed with the Equal Employment Opportunity Commission or EEOC, it will be under federal jurisdiction. If management was aware of the harassment, the employer can be held liable and may end up paying the victim an amount of money designated in a settlement.
How do Employers Limit their Liability?
The best way to limit liability is to have policies and procedures in place for both preventing and reporting harassment, and should inappropriate behavior occur, to respond immediately, investigate promptly, and take action based on the findings to ensure the behavior does not reoccur.
It is important to communicate a clear anti-harassment policy company-wide. Review it so managers and staff know what is expected. Include your anti-harassment policy in employee handbooks, outlining unacceptable behavior and procedures for reporting harassment. Publicize the policy through regular meetings and anti-harassment training and reduce company liability by having all employees sign acknowledgment forms. Lead by example, by maintaining a high standard of conduct.
If you receive notification of a complaint submitted to the EEOC or Hawaii Civil Rights Commission, we encourage you to contact your ProService HR Consultant to assist you through this process.