In this #MeToo era, preventing harassment in the workplace is necessary to retain good employees, protect your entities’ reputation and avoid liability for the employer, as well as individual employees. It is a reason to proactively review harassment policies, complaint procedures and training on harassment – and to do so now before it’s too late and your entity is accused of allowing harassment.

Training to Identify Harassment

One of the main steps in preventing harassment and limiting liability is training employees, particularly supervisors, to identify and avoid harassment and the risk behaviors that lead to claims of harassment.

Harassment is unwelcome conduct, based on a person’s membership in a protected class, 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. In Wisconsin, protected categories include gender, age, race, ethnicity, sexual orientation, marital status, religious beliefs/creed, disability, military status, or use or non-use of a lawful product. Importantly, harassment does not include workplace disagreements, a supervisor monitoring performance, coaching employees or other similar actions.

There are two types of harassment employees and supervisors need to be aware of and able to recognize: (1) economic harassment, and (2) environmental harassment. Economic harassment is an abuse of power by an authority figure or supervisor where they request a “quid pro quo,” meaning the submission to or rejection of a request as a term or condition of employment, resulting in a tangible employment action. For example, a supervisor says, “sleep with me and I’ll make sure you get that promotion,” or, “go on a date with me or you will get the more difficult assignments.” A single incident of economic harassment can be enough for a legal claim and liability.

Environmental harassment is often referred to as, “hostile work environment harassment,” which is conduct that has the effect of interfering with a person’s work performance or of creating an intimidating, hostile or offensive working environment. It has four elements:

1. Unwelcome;
2. Sexual conduct or conduct directed at a protected category;
3. Offensive to the recipient and to a “reasonable person;” and,
4. Conduct that is severe or pervasive (repeated).

All four elements must be shown for the conduct to be unlawful. However, behaviors which could lead to legal liability, if pervasive enough, should be prohibited in the first instance by an employer’s policies because of the potential for creating claims.

It is important that employees understand that liability can arise outside of the workplace if it can be tied to the workplace, such as at a bar where employees have gathered for an event sponsored by the employer. Also, it is important to recognize that third parties are prohibited from harassing employers and that employees cannot harass third parties.

We recommend training employees and supervisors on risk behaviors that have the potential to rise to the level of a hostile work environment. For example, offensive jokes, slurs, nicknames or pet names, epithets or name calling, touching (even horseplay), physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures are risk behaviors. One incident may not result in legal liability unless severe enough. But, there is no specific guideline as to the nature or frequency which will absolutely create liability. Limiting “risk behaviors” is the best way to minimize legal liability.

Regular trainings on identifying and avoiding harassment and risk behaviors, as well as informing employees of the reporting and complaint procedures, are recommended in order to reduce the risk of harassment.

Implement Effective Policies

In addition to regular trainings, employers must ensure they have effective and legally sufficient anti-harassment policies in place. Legally sufficient policies must prohibit harassment and have an effective complaint process, which includes multiple avenues for reporting harassing conduct. It is not enough to have a complaint process if employees are not able to use it because they do not have access to it or they are uncomfortable with the individuals to whom reports are to be made. Employers should review their workplace conduct policies, as well, to determine if the policies provide enough guidance to employees and supervisors on appropriate conduct.

Employers also need to consider what they want to do from a policy perspective with harassment and bullying because even if harassment is not legally actionable, the public looks at whether employers are doing the right thing, i.e., have the right policies in place and responds appropriately. Policies can be “zero tolerance” or allow for rehabilitation and second chances.

Finally, employers should review their investigation policy to ensure it does not discourage people from reporting and informing their employer as to issues.

These policies should be regularly communicated to all staff to ensure harassing conduct is prohibited, reported immediately and can be corrected to help avoid liability. It is also important to track employees’ receipt and acknowledgment of the policies and their participation in trainings.

Respond to Harassing Conduct with Prompt and Thorough Investigation

Employers cannot ignore harassing conduct, or they risk liability and reputational harm. Employees should be trained to know that if they are subject to or learn of harassing conduct, they should tell the harasser to stop if they feel comfortable doing so, report it to their supervisor/department head or report it to Human Resources. When a supervisory employee learns of sexual harassment (whether or not there is a complaint), dealing with conduct should be the most important item on his/her agenda.

Complaints do not have to be in writing or otherwise formalized to require a response. Even anonymous complaints should be treated seriously where there are indicia of reliability (e.g., sufficient detail). In addition, even where an employee requests that nothing be done, the employer must respond to the complaint.

After receipt of a complaint, prompt investigation and effective action to stop and prevent harassment can relieve employers of liability. The purpose of the investigation is to determine if harassment has occurred and, if it has occurred, to determine how it may best be ended. Action without an investigation and consideration of both sides can compromise the accused’s contractual and due process rights, as well as their rights under personnel handbooks, or create potential civil rights claims if there is unequal or differential treatment of accused parties.

Sometimes an informal investigation (rather than the complex investigation) is sufficient to deal with a complaint. Informal investigation procedures include direct intervention (e.g., remove offensive document from bulletin board) or a discussion (addressing an isolated remark). However, “quid pro quo” cases are never suited for informal investigations. Also, factually complex “atmosphere” cases are better suited to the more formal investigatory procedures. Be aware that police investigation does not obviate the need for an employer’s own investigation, nor does a police decision mandate results of the employer’s own investigation.

Because an employer’s investigation must be thorough, at a minimum, employers should always require an interview of both the complainant and the accused. In most cases, the employer should interview all readily identifiable witnesses or others with likely information. In addition, the investigators should review documentary evidence, e.g., employee notes, telephone records and personnel files.

When conducting investigations, keep in mind that promises of complete confidentiality must be avoided because it is impossible to confront the accused or witnesses with allegations and not identify the complainant. Instead, advise all parties that information will be shared only on a “need to know” basis. It is also important to reassure the individual who has made the complaint that he/she will be protected from unlawful retaliation and to inform the accused that retaliation is prohibited.

Trained, unbiased staff or legal counsel should conduct the investigation and follow the procedures set forth in policies, contracts, or by past practice. Also, it is best practice to have two individuals conduct the investigation to maximize efficiency and ensure accuracy.

Take Effective Remedial Action

After investigating the complaint, the investigators should attempt to reach a conclusion regarding the merits of the complaint and determine what, if any, discipline or other action, is needed to prevent further harassment. If harassment is found to have occurred, disciplinary action against the offending employee, ranging from reprimand to discharge, may be necessary. The corrective action should reflect the severity of the conduct and be sufficient to prevent further harassing conduct.

After determining the merits and any corrective action needed, employers should advise the complainant and accused that the investigation has concluded, and the conclusion reached as to the allegations. However, it is very important for employers to provide extremely careful control over access and review of any report to preserve any qualified privilege (such as the attorney-client privilege) and to minimize defamation risks.

Attorneys at Buelow Vetter are prepared to train staff, review policies and help respond to and investigate harassment complaints to help employers avoid liability and protect their reputations. If you have questions or need assistance, please contact Claire Hartley at chartley@buelowvetter.com or 262-364-0260, or Susan Love at slove@buelowvetter.com or 262-364-0255, or your Buelow Vetter attorney.