The 5 R’s of Harassment Avoidance

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 Chicago.

Segal has simplified his suggestions for antiharassment training for supervisors and managers to “The 5 R’s.”

R#1. Refrain

Supervisors and managers have to set an example by refraining from:

• Unlawful discrimination, harassment, and retaliation against members of any protected group
• Other unacceptable conduct, even if not unlawful

R#2. Report

Managers and supervisors must report to HR all complaints by an employee of unlawful discrimination, harassment, or retaliation or other inappropriate conduct, even if the employee:

• Requests that nothing be done
• Asks for absolute confidentiality
• Does not use legal buzz words
• And even if you do not believe that the complaint has merit

R#3. Respond

Supervisors and managers must respond proactively to possible unlawful discrimination, harassment, or retaliation (or other inappropriate conduct), even if there has not been a formal complaint. Remember:

• Silence suggests that you condone the behavior.
• You cannot tolerate unacceptable conduct even if there is no complaint.
• Consult with your HR function about appropriate corrective action.

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R#4. Remedy

Managers and supervisors must take steps to remedy unlawful discrimination, harassment, and retaliation and other inappropriate conduct (even if not unlawful).

• Focus on inappropriateness, not illegality. Generally, says Segal, behavior will be inappropriate before it’s illegal, and the time to act is when it is inappropriate.
• Again, consult with HR about appropriate corrective action.

R#5. (Don’t) Retaliate

Finally, managers and supervisors must avoid retaliation or the appearance of retaliation.

• The prohibition against retaliation applies not only to the person making the complaint  but also to:
• Witnesses
• Others who participate in the investigatory process
• Others who are associated with the complainant, for example, you can’t retaliate against a spouse of a complainant.
• The prohibition covers not only tangible employment actions but also:
• Other material terms and conditions of employment
• Retaliation independent of the workplace
• Exclusion or ignoring
• The fact that the complaint lacks legal merit is not a defense to unlawful retaliation.

Finally, Segal says, although we tend to focus on sexual harassment, remember that these supervisory responsibilities apply equally to unlawful discrimination and retaliation on any basis.

Harassment—a critical concern, no doubt. What’s the status of your policy on harassment? And, what about all those other policies that you need? Our editors estimate that for most companies, there are 50 or so policies that need regular updating (or maybe need to be written). It’s easy to let policies slide, but you can’t afford to—your policies are your only hope for consistent and compliant management that avoids lawsuits.

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The Top 25 Behaviors That May Be Harassment

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