Harassment: avoiding the nightmare

March 1, 2010
In fiscal year 2008, 46,402 harassment complaints were filed with the Equal Employment Opportunity Commission ...

For more on this topic, go to www.dentaleconomics.com and search using the following key words: sexual harassment, employee conduct, compliance, liability, Tim Twigg, Rebecca Crane.

In fiscal year 2008, 46,402 harassment complaints were filed with the Equal Employment Opportunity Commission, which resulted in monetary benefits to the EEOC totaling $122 million (not including private litigation). That makes harassment claims, allegations, and lawsuits one of the fastest growing areas of employment law compliance violations.

Judgments and settlements in these cases continue to reach all–time highs, costing employers thousands of dollars and significant profit loss. Even if an employer wins, it feels like a loss due to high attorney fees to fight the allegations. And settling is not that much cheaper when you factor in that average cost to settle claims and lawsuits in the dental industry is $25,000.

How can you keep this from happening to you? Prevention is the key. Employers often find themselves in these situations because they didn't take the necessary steps to prevent harassment from occurring or stop the behavior when it did happen. The issues only seem to get worse if left unaddressed.

Understanding harassment. Most harassment claims generally take one of two forms: ¿ hostile work environment or ¿ quid pro quo. Most harassment allegations fall under the “hostile work environment” category. This is typically defined as “conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.”

Hostile work environment harassment can occur based on any of the “protected classes” covered under the many antidiscrimination laws enacted on a federal, state, and city/county level. These laws cover a variety of characteristics such as race, color, national origin, sex (including pregnancy–related conditions), religion, disability, sexual orientation, etc. Every state and city/county may have different protected class categories, and employers should know which ones are applicable to them.

Hostile environment harassment can include, but is not limited to, indecent propositions, inappropriate discussion of sexual activities, obscene or discriminatory jokes, displaying sexually suggestive or racial pictures, crude and offensive language, ethnic slurs, pranks, and negative stereotyping. These situations rise to the level of harassment when it is severe and pervasive and the employee feels offended, intimidated, or fearful as a result of another person's action.

Further definition is difficult since the “hostile” nature of the alleged act(s) is effectively defined by the victim. Whether or not the accused individual intended to harass or create a hostile work environment is irrelevant in these claims. To the courts or investigating agency, it is about how the act(s) made the victim feel and whether or not a “reasonable person” would also conclude harassment occurred.

The other form of harassment is referred to as “quid pro quo.” Although we find it much less frequent, this is harassment that occurs when an individual is asked to submit to sexual conduct and perceives her/his job is conditioned on compliance. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute “quid pro quo” harassment when:

  1. Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual's employment
  2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual
  3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Liability stems from lack of prevention or action from the employer. In the event a claim or lawsuit is filed, two aspects are reviewed to ascertain liability on the employer's part:

  1. Whether or not the affected employee issued a complaint of harassment and then suffered a “tangible employment action” soon thereafter. A tangible employment action is, among others, denying raises, termination of employment, denying access to training opportunities, or demotion. Bottom line, if the complaining employee suffered a tangible employment action, the employer will likely be on the hook for liability because it will be viewed as retaliation, which is prohibited at all times.
  2. Whether, in the event of no tangible employment action, the employer is able to present an “affirmative defense.” An affirmative defense demonstrates that the employer took “reasonable care” to prohibit harassment. What is reasonable care? Here are some of the components that support reasonable care:
  • A comprehensively written harassment policy
  • Regular communication of the policy
  • Antiharassment training
  • Investigation of complaints
  • Appropriate action taken with perpetrators when necessary
  • Periodic follow–up with the victim

If the above components are in place and the accusing employee does not avail him/herself of the proper procedures, then the employer will not likely be found liable. Failure to establish an affirmative defense and the employer is toast. This is why prevention is absolutely imperative.

Prevention: Step 1: Provide written policy and regular communication. A well–written harassment policy should (call our office for a sample antiharassment policy):

  • Define what constitutes harassment.
  • Explicitly state that harassment of any kind will not be tolerated.
  • Outline reporting channels and methods and insist employees report any harassment concern.
  • Assure employees that a complaint will be treated as confidentially as possible.
  • Notify staff that investigations will be initiated upon receiving a complaint to determine its validity.
  • Inform staff that appropriate disciplinary action, which may include discharge, will be taken against any guilty offenders.

This policy should be included in your policy manual, covered in orientation programs for new hires, redistributed at least annually for continued emphasis, and referenced during antiharassment training programs (at a minimum) to ensure all employees know or should know the policy and procedure at your practice. Don't just issue the policy once and never revisit it. Ongoing communication is vital.

Prevention: Step 2: Provide antiharassment training. If state–mandated laws are not applicable, then the length and timing of the training will be discretionary for employers. It is recommended that training occur upon hire for all new staff members and either annually or once every two years for current staff. As long as the training adequately covers the important aspects of harassment and properly outlines the rules and processes at your practice, the length of the training isn't as important; however, an effective antiharassment training program is likely to be at least one hour.

Prevention: Step 3: Investigate complaints. Timeliness is critical. The longer an employer waits to investigate a complaint of harassment, the more it will appear as though the employer is not taking the situation seriously or does not intend on managing the problem. Investigating complaints should become an employer's number one task to handle — all other tasks take a backseat. Furthermore, a failure to act could result in the employee being vulnerable to more harassment, which will increase the employer's liability.

Employers should not go forward with the investigation unless they can be truly unbiased and are confident in their own abilities as an investigator. If not, then hiring a third–party to conduct the investigation would be more appropriate.

The objective of an investigation is to gather as much information as possible. The investigator can do this by collecting practice documents that may establish facts (i.e., payroll records, job assignments, working hours, etc.) and interviewing everyone involved (the accused, the victim, witnesses, and others who know about the incident).

When conducting the interviews:

  • Use open–ended questions and probe for as much detail as possible.
  • Reiterate your understanding of the events with the person being interviewed and document his/her agreement with your version of the story.
  • Compile written and signed statements.
  • Remind each individual that he/she must come forward with additional information if needed after the interview.
  • Keep factual details confidential at all times; stress to everyone involved the importance of confidentiality.

Maintain detailed records of any interviews and other materials that are relevant to the investigation. Once the investigation is over, prepare a final report detailing the investigatory steps taken and the conclusion. Keep all documentation in a confidential file.

Prevention: Step 4: Take necessary disciplinary action. If the case is determined to be valid, take immediate and appropriate corrective action. This means taking “action reasonably calculated to end the harassment” and keep it from recurring. Severity of the discipline will be determined by many factors, including the nature and seriousness of the offense, and whether or not it is a repeated behavior. Examples of corrective action may include: apology to the victim, verbal/written warning, loss of seniority, counseling, training, suspension, and termination.

Prevention: Step 5: Follow up. Respond to the employee making the complaint regarding the findings and resolutions. Periodically follow up with the victim to ensure that the harassment has stopped, the remedy was effective, and no retaliation has taken place.

Remember, avoiding harassment charges is primarily addressed through prevention. Make sure employees are aware of your policy and procedures, and act when necessary to stop inappropriate conduct. By insisting that all individuals behave in the workplace in a respectful manner, you will significantly reduce the chances that objectionable behavior will occur. The benefits are a more harmonious work environment with better job performance, less turnover, and more profit.

Tim Twigg is the president of Bent Ericksen & Associates, and Rebecca Crane is a human resource compliance consultant with Bent Ericksen & Associates. To learn more about the company's services, call (800) 679–2760 or visit www.bentericksen.com.

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