The myths and facts about workplace harassment

By Patricia S. Eyres

Harassment is a complicated subject, full of gray areas and misinformation. There are so many questions as to what constitutes harassment and what a company's legal responsibilities are.

Does the employee have to report an incident before the company acts? Is a single act of harassment actionable? Do sexual harassment laws protect men? Is a company responsible for the actions of its customers?

Here are some real world questions that employers have voiced.

Myth No. 1: Sexual harassment is the only form of unlawful harassment.

Fact: As a type of discrimination, workplace harassment may be based on any of the protections of federal and state law, including gender, race, religion, ethnicity, age, disability, marital status or sexual orientation.

Myth No. 2: Sexual harassment laws protect only women in the workplace.

Fact: Sexual harassment is not confined to females. Men have brought charges of sexual harassment in increasing numbers when they are faced with hostile or offensive sexual behavior. The number of sexual harassment complaints filed by men with the Equal Employment Opportunity Commission quadrupled in the last decade, and in the year 2000, they accounted for 13.6 percent of all sexual harassment complaints filed with the federal agency. The U.S. Supreme Court also ruled in a 1998 case that men are protected from harassing behavior.

Myth No. 3: Sexual harassment only occurs when a power holder threatens job consequences for refusing a sexual advance.

Fact: Any unwelcome conduct -- verbal, physical or visual -- that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment is harassment.

Myth No. 4: A single, isolated act can never violate workplace harassment laws.

Fact: While persistent, pervasive behavior is usually required before a work environment becomes legally hostile, a single severe physical act, threatening behavior or use of extremely offensive words, may suffice.

Myth No. 5: An employee whose conduct creates an offensive environment for a co-worker must intend to offend for it to be considered harassment.

Fact: A claim for hostile-environment sexual harassment does not require proof of intent to harass. Many people accused of harassment genuinely believe their behavior is funny, cute, or attractive. Some even believe it is welcome by everyone. What the harasser thinks, believes or intends is wholly irrelevant in determining whether sexual harassment has occurred.

What matters is the victim’s reasonable perception of what is offensive, intimidating, hostile or abusive. Not surprisingly, many cases focus on the perceptions and reactions of the parties. Individuals have different thresholds of tolerance for behavior that is sexual in nature. The trier of fact must determine whether it was reasonable for the victim with an individual set of life experiences to have found the conduct offensive, intimidating, hostile or abusive. The same standard applies to racial, religious, ethnic, age and disability-based harassment.

Myth No. 6: An employee who is offended or intimidated by a co-worker's conduct must first tell the offender that the behavior is unwelcome before asking for assistance from an administrator or the human resources department.

Fact: The U.S. Supreme Court made it clear in two cases in 1998 that employers must have internal complaint procedures that provide a harassed employee “multiple avenues” to complain internally. Many state courts have followed these precedents. The law requires that employer policies provide several ways for employees to request that unwelcome harassing behavior be stopped, including complaints to managers, supervisors and/or the human resources department. While employees may chose to discuss their discomfort with a co-worker's behavior with that person in a professional manner, they are not required to do so.

An effective, accessible method for employees to complain about harassment in the workplace, coupled with immediate and appropriate corrective action when harassment occurs, can support a successful defense to claims of supervisory harassment that the employee did not voice first through the internal complaint process, but only when the employer can establish the following specific factors.

• The procedure must not require that the complaint be made to, handled at any stage, by, or controlled by the accused harasser.

• The procedure must deal seriously with both the complaint and the reporting employee and be capable of resulting in stopping any harassment.

• The procedure must be reasonably prompt, but must also allow the employer enough time to perform a serious investigation.

• The employer prohibits retaliation in any form against participants in the complaint process.

Myth No. 7: A manager has no obligation to take action unless there is a formal complaint by an affected employee.

Fact: A manager or supervisor who becomes aware of harassing conduct must act even though no formal complaint has been made or the victim withdraws the complaint or leaves the work environ­ment. The harasser may engage in similar conduct affecting other individuals in the workplace.

Myth No. 8: Policies that prohibit retaliation should protect only the person making a complaint for workplace harassment.

Fact: Federal and many state laws absolutely prohibit reprisals or retaliation against any person who acts in good faith during or in connection with the investigation and resolution of a workplace harassment complaint. Every person who participates in an employer’s internal investigation is protected from all forms of retaliation. This includes the person reporting the incident, the person whose conduct is the subject of the report, and any co-worker or administrator who may have knowledge of the events or issues being investigated.

Myth No. 9: Only managers and supervisors with power over employees can violate laws prohibiting retaliation.

Fact: While retaliation occurs with direct reprisals by management, co-workers' behavior may also violate the law and company policy, including ostracism, threats, taunts or abusive gossip.

Myth No. 10: A company is not responsible for the conduct of vendors, customers or other non-employees if they create an offensive or abusive environment for employees.

Fact: Both Federal and state laws define workplace harassment as conduct that unreasonably interferes with an employee’s ability to perform the job. In maintaining a harassment-free work environment, employers are therefore responsible for the inappropriate verbal, physical or visual (graphic) conduct of employees, supervisors, managers or others with whom their employees come into contact in their work environment. This includes visitors, vendors and suppliers; even customers or clients. Policies must specify that if an employee experiences inappropriate behaviors by third parties with whom they come into contact while working, the employer will investigate and take corrective action.

Myth No. 11: Temporary employees and independent contractors are not protected by workplace harassment standards.

Fact: All individuals are protected by legal standards and company policies while performing work for or on behalf of a company.

Myth No. 12: A business can never be liable for workplace harassment in the absence of proof of tangible job consequences for the affected employee.

Fact: In the twin 1998 rulings by the U.S. Supreme Court, in some situations, simply working in an environment that is offensive, intimidating or hostile is sufficient to require a report and appropriate corrective action. It is not necessary for the employee to demonstrate that the conduct has actually resulted in tangible loss of pay, benefits or status.

Myth  No. 13: The purpose of workplace harassment policies and disciplinary actions is to punish employees who behave inappropriately at work.

Fact: While the effect of discipline may be punishing, the purpose of policies is to create a work atmosphere where every employee is comfortable raising their concern with an administrator or the human resources department, so that it can be promptly addressed. 

According to the U.S. Supreme Court, when a supervisor's harassment results in a tangible job action that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits, the employer may be automatically liable. This is so even if the employee has not complained to higher management.

However, when no tangible job action is undertaken by a harassing supervisor, the employer may still be legally responsible unless it had an enforceable policy and internal complaint procedure, trained supervisors on harassment prevention, and the victim unreasonably failed to use the internal complaint procedure.

Patricia S. Eyres is an experienced attorney with over 18 years defending businesses in the courtroom. She is a full time professional speaker and author. Her most popular presentation is “Leading Within Legal Limits.” She can be reached at www.PreventLitigation.com or at 1-800-LIT-MGMT

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