Avoid liability by handling harassment claims effectively

Protected classes under Title VII of the Civil Rights Act include race, sex, religion and national origin. Harassment of these protected classes has been illegal since the inception of the law in 1964. Two courts recently utilized the "harassment jurisprudence" under Title VII to allow disability-based harassment claims under the Americans with Disabilities Act.

These decisions will create more lawsuits and should provide further motivation for employers to ensure zero-tolerance for all forms of harassment in the workplace.

Harassment against a protected class is a form of discrimination. Harassment can be verbal, physical and pictorial. The claimant does not have to be the person at whom the behavior is directed but might be anyone offended by the conduct.

The two types of harassment include "quid pro quo" and "hostile work environment." Quid pro quo is a Latin phrase meaning "this for that." Only a manager is able to commit quid pro quo harassment, defined as harassing a protected class and affecting tangible job benefits such as a promotion or job retention.

A manager, coworker or outside vendor might create a hostile work environment. The harassment must affect a term, condition or privilege of employment. The definition includes any behavior unreasonably interfering with an individual's work performance or creating an intimidating, hostile, abusive or offensive work environment. To determine if conduct creates a hostile work environment, the courts review frequency, physical threats and humiliation, and severity, using a "reasonable person" standard. If the behavior would substantially affect the work environment of a reasonable person, a claim is allowed.

An employer is liable for all types of harassment if the company knew or should have known of the conduct and failed to take immediate and appropriate corrective action. Two practices will significantly minimize liability for harassment claims.

First, conduct yearly in-house management and employee training. Supervisors must become skilled at recognizing and reacting to harassment of all protected classes. Both associates and managers need to be aware of consequences of harassment, such as formal counseling, loss of pay, demotion or termination.

Second, create a detailed written policy addressing zero-tolerance for harassment. The policy should communicate the proper complaint procedures, a statement promising quick action, disciplinary consequences, a commitment to confidentiality and protection against retaliation.

Immediately begin an investigation upon receiving the slightest hint of possible harassment. Keep everything confidential. Interview the alleged victim, harasser and witnesses separately. Document the complaint and all interviews. Review personnel records to ascertain previous complaints against the alleged harasser. Make credibility determinations. Be fair and objective. Ensure retaliation does not occur.

Decide what action to take if you determine harassment occurred. Swiftly carry out the decision. Communicate the conclusion of the investigation to the victim and harasser.

Race, sex, religion, national origin and disability-based harassment must never be tolerated. Begin now to take the proper steps to protect your organization and those you employ.

(Lynne Haggerman is president/ owner of Haggerman |amp| Associates, a retained search, outplacement, management training, and human re-sources consulting firm.)