What does an employer do when an employee reports that he or she was being shoved at work by another employee and that it is a recurring situation that has been going on for a while? The question raised by the facts described is whether it would be deemed workplace bullying, something that does not subject the employer to liability for illegal actions, or whether the situation has risen to a situation of harassment and hostile work environment. It is important that the situation be addressed and records be created to demonstrate the employer’s efforts to address the complaint and prevent further incidents.
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 where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.
Cases of hostile work environments are extremely subjective and fact-specific, and complicated by the fact that evidence is pretty much a “he said-she said” situation. Thus, the case is proven through the sum of the circumstances. The courts consider all aspects of the situation, including the frequency and severity of the allegedly hostile behavior and the overall situation. In most cases for a hostile work environment to be illegal, the actions that create the hostility are pervasive and long-lasting and not limited to one or two remarks or acts. In extreme situations, severity outranks longevity and one single event is enough to create a hostile environment. A court will use objectivity to measure pervasiveness by asking: Would any ordinary employee in similar circumstances find that this behavior creates a hostile work environment?
The employer is automatically liable for harassment if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action. Liability arises in the context of a labor law claim or unemployment insurance liability. Liability for the harassment results from a negative employment action such as termination, failure to promote or hire, and loss of wages. If the harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. However, it can also arise where an employee quits because of the situation.
This is the recommended course of action for the employer:
- Advise the offending employee about her actions and create a disciplinary record of the incident.
- Do a full and complete investigation of the incident and the alleged pervasive behavior by the offending employee.
- Develop a written employee policy or code of conduct about no tolerance for this type of behavior and a procedure for handling such complaints. Distribute the policy to all employees and have them sign that they received it.
- Hold an employee meeting to discuss the policy, the change in workplace culture and your procedures for handling complaints like this. Employees should be given the opportunity to report any issues they’re having with other colleagues, and they should feel confident that their complaint will be taken seriously.
- Train managers, supervisors, and HR professionals to handle the complaint, investigate and to enforce the no tolerance policy.
These situations can leave employers exposed to significant risk. There are many consultants and attorneys experienced in employment and labor law. It is generally a good idea to discuss the situation with an experienced professional to mitigate liability and costs.