It’s amazing that in 2011 we’re still talking about harassment, says “recovering litigator” Jonathan A. Segal, but it’s still causing massive lawsuits and destroying productivity. And training managers and supervisors is still the key to preventing it.
Segal, who is one of SHRM’s most popular speakers, is a partner in the Philadelphia office of law firm Duane Morris LLP. His remarks came at the SHRM Annual Conference and Exhibition, held recently in Las Vegas.
First of all, says Segal, although we tend to think about sexual harassment, there is a significant number of other categories of harassment to be concerned about (and to train managers about). For example, he says, here are examples of the bases on which employees might be protected:
- Age
- Civil union/domestic partners
- Citizenship
- Disability/handicap (physical or mental)
- Family status*
- Gender Identity*
- Genetic information
- Marital status*
- National origin/ancestry
- Pregnancy
- Protected complaints/activity
- Protected leave
- Race/color
- Religion/creed
- Sex/gender
- Sexual orientation*
- Veteran’s status/military status
* Protection depends on state or local laws.
Who Can Be Held Liable?
Certainly the employer is liable under federal law, says Segal, but also managers and supervisors may be personally liable under state law. This is a good thing to remind them about, says Segal.
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What Are the Potential Damages?
What are the potential damages that can arise from harassment? Segal identifies eight types:
1. Liability. Remember says Segal, that under federal law there are limits to certain damages, but often not under state law. Consider the possibility of
- Economic damages
- Pain and suffering
- In some cases, punitive damages
2. Cost of litigation. Direct costs of litigation are substantial, but don’t forget that there is also lost time. That’s time you spend proving the negative, that is, that whatever was alleged either didn’t happen it wasn’t pervasive enough to be actionable.
3. Adverse career consequences. For those who engage in or tolerate harassment, there are almost certainly adverse consequences.
4. Productivity losses. There are bound to be direct productivity losses caused by participating in the defense of a claim, including depositions, fact-finding, and court appearances.
5. Employee relations. One effect of harassment is that you will be pushing away talent, both present and potential.
6. Public relations. It’s hard to estimate the negative consequences of poor publicity, but it’s not going to help the company.
7. Stock value. The adverse news may cause erosion of the company’s stock value.
8. Core values. Finally, says Segal, you will see an erosion of the company’s core values.
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What Constitutes Unacceptable Conduct?
For those who don’t know it when they see it, Segal gets specific by listing 25 examples of harassing behavior:
- Linking any employment decision, benefit, etc. to a subordinate’s submission or refusal to submit to sexual advances [Always illegal]
- Asking for sex and other sexual advances or propositions (even if no demand or threat)
- Sexual flirtations, bantering, etc.
- Engaging in sex while at work
- Repeated request for dates [Initial request risky if supervisory-subordinate relationship]
- Sexually explicit or suggestive conversations, comments, questions, stories, etc. (whether mixed gender or same gender)
- Questions or comments about an employee’s actual or perceived sexual orientation
- Comments with regard to appearance of a sexual or suggestive nature or at inappropriate times or frequency
- Sexual or physical assault [Always illegal]
- Unwelcome and/or inappropriate touch, such as patting, pinching or brushing against someone
- Sexual or suggestive “jokes”
- Racial, ethnic or religious “jokes” or “jokes” which make fun of, belittle or stereotype any other protected group
- Mimicking or making fun of someone’s accent, disability, diction, gestures or manner of speech or religious, racial or ethnic attire or dress
- “Joking” about or making fun of historical tragedies (e.g., slavery) or violent crimes (e.g., rape)
- Obscene, sexual or suggestive materials, cartoons, objects, photos, etc., including calendars and other pin-ups
- Racist, sexist or other hate-based graffiti
- Hate symbols, such as a noose, a swastika and a KKK symbol
- Hate slurs/epithets which relate to any protected group, such as the “N” word and the “C” word
- Nicknames which relate to any protected group, such as “Grandma”
- Stereotypic comments, such as “you don’t sound…”
- Derogatory/unwelcoming messages (e.g., “Speak English or Go Home” sticker)
- Cursing and other foul language
- Verbal or non-verbal innuendo of a sexual, suggestive or threatening nature
- Hostile behavior targeted at employee because of his or her membership in protected group
- Other inappropriate or unprofessional conduct which relates to or is directed at a protected group
Not Just at Work
Segal also reminds employers that the prohibitions against sexual harassment apply beyond company walls:
- Off site work, social and other events
- Written, oral, electronic and all other forms of communication (including social networking)
- Non-employees, such as customers/clients/patients, contractors, vendors and suppliers
In tomorrow’s Advisor, Segal’s Rules for supervisors and managers, plus an introduction to a unique checklist-based audit system that helps you catch problems before the feds do.