For the last 20 years or so, employers have focused on educating their employees regarding harassment laws. This is a good thing and nothing in this article is intended to suggest otherwise. However, this article suggests that, in their desire to squelch the potential of harassment, employers may suffer from unintended consequences. As a group, employers have focused on making sure that employees understand that harassment on the basis of sex, race, religion, national origin and other protected categories is unacceptable in the workplace. To that end, many employers have implemented “zero tolerance” policies and have trained their employees to believe that any sexual comment is “sexual harassment.”
There are several problems with this approach. First, many employees now believe that relatively minor indiscretions constitute illegal harassment. This results in more lawsuits that are based upon inappropriate, but not illegal, conduct.
Under federal law and the law of most states, the definition of harassment is conduct, based upon a protected category, “that is sufficiently severe or pervasive to alter a term, condition, or privilege of employment.” Courts have been interpreting that language for more than 20 years, and it actually takes some fairly egregious behavior to meet that definition.
For example, in one case that made it to the 6th Circuit Court of Appeals, the plaintiffs alleged that, over a three-year period, a (female) supervisor caressed and stroked the hair of another female employee, rubbed her genitals in front of the plaintiffs, used vulgar language at a staff meeting. The court found that over that period of time this was not sufficiently severe or pervasive to constitute “sexual harassment” under the law.
In a case that made it to the 4th Circuit Court of Appeals, the plaintiff alleged that over a seven-month period she saw at least 15 faxes, emails and cartoons that were sexually explicit, some of which were posted by the time clock. The court found that “a few observations of lewd magazines and inappropriate jokes or drawings over a seven month period” is not sufficiently severe or pervasive to constitute illegal harassment.
Of course, we cannot determine what a particular judge might do with a particular set of facts, but the point is that it is more difficult to establish a claim of illegal harassment than most people think.
The second problem is that many jurors now believe that relatively minor indiscretions constitute illegal harassment. This results in more verdicts against employers when employees have engaged in inappropriate, but not illegal, conduct. In talking with jurors after a trial, as well as viewing jurors in mock trial situations, we have learned that juries are much more likely to make a determination based upon their own experiences than they are to make a determination based upon the judges definition of the law. For that reason, juries often use a definition of “sexual harassment” that they have learned at work, rather than the legal definition. Because employers often use an incorrect definition of “harassment,” juries often hold employers to a tougher standard than that created by the law.
Employers wanting to discourage inappropriate behavior should focus policies and training on “inappropriate” behavior rather than “harassing” behavior. Here are a few practical suggestions.
1. Educate employees on the meaning of “harassment.” This means talking to employees, not only about what unlawful harassment is, but also what it is not.
2. List examples of inappropriate behavior, rather than examples of “harassment.” For example, a policy might state, “The following are examples of behavior that is prohibited by our policy, regardless of whether the behavior constitutes illegal harassment.
3. Do not include the phrase “zero tolerance” in your anti-harassment policies. To most people, “zero tolerance” means that you will fire someone for violating the policy. In some instances, conduct that violates the policy may not necessarily warrant termination. Employees and juries both have trouble understanding this, and “zero tolerance” language lends itself to the argument that the employer did not follow its own policy.
4. Educate employees regarding their own obligations. Explain that individuals have an obligation not to harass, and they also have an obligation to avoid harassment, where possible.
5. Clarify that the employer will take appropriate steps upon receiving a complaint. Many policies state that the employer will investigate or will interview all witnesses. This means an employer could be accused of violating their own policy if they don't conduct an investigation even if their judgement indicates one is not merited.
6. Clarify that confidentiality will be preserved to the extent possible. Confidentiality is not always possible when an employer must conduct an investigation. Employers should not make promises they cannot keep.
7. Review your videos. If you use videos for training purposes, review them to be sure they contain accurate statements of law.
8. Avoid using handouts in training unless they have been carefully reviewed by counsel.
9. Avoid answering specific questions in a training setting. Oftentimes, it is not possible to provide an answer to a hypothetical in the abstract. Employees may not provide you with all the facts.