Last year was another record-breaking year regarding employee claims filed with the Equal Employment Opportunity Commission. This year appears to be following suit. Several federal laws prohibit harassment based on an individual’s race, color, religion, sex, age, pregnancy, genetics, national origin, veteran status, or physical or mental disability.
In Missouri, creed and ancestry are additional protected classes. In addition, a staff member may not be retaliated against for engaging in “protected activities,” consisting of opposing harassment practices, participating in an investigation or filing a charge of harassment.
Harassing comments and pictures that might never be said or shared in face-to-face interaction can appear in social media and text messaging since people tend to be more candid.
Harassment may be verbal or pictorial in nature. The target must consider the conduct to be unwelcome, defined as not solicited, not incited and regarded as undesirable. The claimant can be the person the conduct was directed toward or anyone offended by the behavior.
Ideally, a victim should plainly convey to the harasser that the conduct is unwelcome. However, failure to directly assert the harassment is unwelcome would not necessarily defeat a claim. A business is liable regardless of whether management knew or should have known about the behavior. Accordingly, take any comment regarding alleged harassment seriously, even when overhearing a conversation in the break room.
One form of harassment is quid pro quo, defined as a manager seeking sexual favors in return for job benefits or opportunities. The benefits must be tangible, such as promotions, job retention and position assignments.
The second form of harassment is a hostile work environment. A supervisor, employee, vendor or customer may create a hostile work environment if he unreasonably interferes with a team member’s work performance; affects a term or privilege of employment; causes the laborer to feel humiliated, miserable or threatened; or creates a work environment that is intimidating, hostile or offensive.
Key issues are frequency and severity. The more frequent the conduct, the less severe it need be in order to be considered harassment. Conversely, one severe behavior might be deemed harassment.
Hostile work environments may be established utilizing social media and texting by discussing sexual activities, expounding on physical attributes, displaying sexually suggestive pictures, using degrading or improper terms, ostracizing workers of a protected class, or submitting pictures or writing comments crude and offensive toward any protected class.
To reduce corporate liability, implement six practices:
- Formulate and distribute a written policy, making it clear the organization maintains a zero tolerance for harassment.
- Prohibit the personal use of employer-issued devices and any other forms of electronic messaging devices the company intends to monitor. If a business desires to provide allowances for personal use, clearly define each type of device that may be monitored and the conduct that is and is not permissible.
- Train managers to recognize and react to harassment, and then provide yearly refresher courses.
- Educate staff concerning their rights and responsibilities, including consequences for policy violations.
- Establish an effective and prompt complaint procedure and investigation process.
- Protect evidence since courts have been emphasizing the importance of preservation of electronic communications and information. Comments and pictures through texting, email, Facebook, Twitter, LinkedIn and other social media forums may be traced back to the alleged harasser as part of an investigation. This documentation might then be utilized as evidence during the disciplinary process. Under the Data Protection Act, be sure to consider the level of intrusion and justify any associate monitoring as part of the investigation.
This will more likely be justifiable as reasonable, proportionate and essential with well-defined company standards and a legitimate business or legal motive for collecting and depending upon online proof.
Because of the prevalent usage of texting, social media and the increase in harassment claims, management is urged to take appropriate steps to protect the organization from lawsuits.
Lynne Haggerman, M.S., is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.[[In-content Ad]]
