“Workplace harassment.” That’s a phrase no company ever wants to hear. But as the business world becomes increasingly educated about workplace harassment—what it is, why it’s illegal, what rights employees have in this area, etc.—every organization needs to be prepared to handle a workplace harassment claim. Fortunately, by treating such complaints seriously, investigating them thoroughly, and taking action quickly to correct harassment, companies can greatly increase their odds of staying out of legal trouble. In fact, the Supreme Court found that when an employer has “exercised reasonable care to prevent and correct promptly any harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” it can avoid liability for certain types of harassment claims. (If both of those two criteria aren’t met, though, the employer can still be held liable for those claims.) If your organization wants to avoid workplace harassment claims, the first step is to understand what workplace harassment is. The U.S. Equal Employment Opportunity Commission offers the following definition: “Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.” Next, be sure you understand what constitutes “reasonable care.” Nolo’s Plain English Law Dictionary defines this as “the degree of caution and attention to possible dangers that an ordinarily prudent and rational person would use in similar circumstances.” To exhibit reasonable care in addressing workplace harassment, an employer should follow these best practices:
- Take all complaints seriously.
- Act quickly. Not only do you want to protect yourself from increased liability (quick action is part of “take all complaints seriously”), but letting problems persist unaddressed can make things worse by indicating that you’ve failed to exercise “reasonable care.”
- Establish a well-defined complaint process. Documentation of this process should be easily accessible to all employees and clearly explain exactly where to take a complaint. (Note that a direct supervisor is often not the best option, because that person could be the target of the complaint. Therefore, be sure that there are multiple avenues for employees to pursue.)
- Reassure complaining employees that they are safe from retaliation. People may be reluctant to report violations if they fear reprisals from their supervisors or colleagues. Therefore, as much as possible, employers should maintain confidentiality for these complaints.
- Conduct and document a thorough investigation. Details are important, so take the time to gather and carefully review all relevant data.
- Take action to resolve the problem. Not only does this mean addressing that specific complaint (and taking appropriate disciplinary measures), but it also means adopting a broader perspective and using the situation as a learning opportunity to avoid future occurrences.
- Foster a workplace culture that has zero tolerance for harassment. When that type of behavior isn’t given space to manifest in the first place, employees don’t need to file workplace harassment claims. The EEOC urges employers to “assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.”