While an employer’s hiring and firing practices may present the greatest risk for litigation, lawsuits based on a company’s employment practices can happen for many reasons. Poorly written policies or a manager’s style can embroil a business in the complaint of a single employee.
Workplace harassment can come from a lack of managerial action as easily as from offensive behavior. A company’s risk level is reduced when employees have a solid understanding of company policies, as well as employees’ rights and responsibilities. It is the employer’s legal duty to communicate workplace conduct policies and to ensure every employee understands and adheres to them.
Workplace harassment is one of the most difficult risks for an employer to control. Whereas most forms of litigation are based on claims of deceitful or improper actions by company management, harassment suits usually seek to blame management for the ignorant, inappropriate or hateful actions of their employees.
What is harassment?
Harassment is any form of malicious or exploitive behavior that alienates or damages an individual to the point of affecting employment conditions. Harassment can be caused by co-workers or managers, either individually or in groups. When the harassment is pervasive or repeated, the situation creates a hostile work environment.
Hostile work environment cases are easy to avoid.
Employees claiming a hostile work environment typically must show that harassment:
1) Occurred repeatedly
2) Was not condoned by the employee in any way
3) Targeted a “protected attribute”
4) Was allowed by the employer
5) Interfered with job functionality
6) Did not cease after appropriate actions by the employee.
Typically, a claim of a hostile work environment succeeds only if the claimant first made his or her employer aware of the situation and the employer failed to take appropriate steps to correct the problem.
Additionally, employees cannot claim they were discriminated against simply because a manager or co-workers didn’t like them for personal reasons. However, employers or HR representatives receiving complaints should encourage individuals to be cordial and work well together despite personal attitudes. A targeted employee could assume (and therefore allege) that he or she is disliked because of a protected attribute. Employees should be trained on the aspects of a hostile work environment and behaviors that will not be tolerated in the workplace.
WHO’S TO BLAME?
No matter what party is responsible for the harassment, the employer could be implicated in an employee’s complaint. While it may be difficult for an isolated incident of co-worker harassment to be blamed on management, every instance of harassment must be regarded as extremely serious. Managers are responsible for promptly and thoroughly investigating and documenting all cases.
Proactive Steps for Employers to help prevent harassment and negligence litigation:
- Include employee training
- Signed documentation of the training
- An agreement of understanding and willingness to comply with company standards.
Training should happen on a regular basis, not just when employees are hired. Demonstrating and reminding workers of the severity of harassment can keep adverse actions from occurring and can demonstrate in court that managers made genuine preventive efforts.
Workers should feel that they can report harassment without any threat of repercussion. At least two channels for reporting harassment should be set up for situations where one is compromised or directly connected to the harassment. If employees do not feel they can report harassment safely, managers may not be aware there is a problem until litigation for a hostile work environment and negligent management is filed. Workers should be trained to recognize harassment of co-workers and be instructed to treat offenses seriously.
Proper action by managers and HR representatives is of little value if it is not properly documented. If a suit is filed, the employer will need to provide proof of the facts pertaining to the suit. This may include proof of policies, training, and management’s response the complainant’s original complaint. An employer needs solid proof that its managers took steps to prevent problems and inform employees about their rights. In addition, the employer must prove that when problems occurred, management responded promptly and appropriately.
Things to keep in mind:
- Employer should have policies, practices, and formal documents for handling complaints
- Every complaint should be logged and investigated using established methods
- A separate and confidential file must be kept (includes all documentation and notes pertaining to the complaint)
- The documentation should include a statement relevant to how the complaint was resolved and the steps that were taken to ensure the situation will not recur.
While not all risk of harassment complaints can be eliminated, well-written policies, management and employee training can lessen their occurrence.
Having employees read and agree to company policies provided in an employee handbook is a key method a company might use to protect itself and educate its workers.
Handbooks should be written carefully and kept up to date. They should include policies as well as the employees’ responsibilities and rights. Managers should be subject to the handbook as well and carry out all investigations and evaluations with the rules of the handbook in mind. Handbooks must comply with local, state and federal laws. The employer may wish to have the handbook reviewed by legal counsel.
Many employers carry liability insurance that can mitigate expenses when unavoidable claims are filed. Contact Hausmann-Johnson Insurance to find out more about liability coverage.
Be sure to check out our upcoming Webinar August 11, 2016 on Investigating Complex Workers Compensation Claims.