Exclusion and avoidance are actions that managers may not realize are forms of retaliation—and there are many types of harassment, says “recovering litigator” Jonathan A. Segal, one of SHRM’s most popular speakers.
Segal, who is a partner at Duane Morris LLP, offered an update to his “Harassment Quiz” at the SHRM Annual Conference and Exposition, held recently in Chicago.
The Many Protected Classes
We tend to focus on sexual harassment, says Segal, but all your managers need to know that there are many other types of harassment. For example, Segal says, employees might be protected under state and/or federal law because of the following:
- 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
Managers and Supervisors May Be Liable as Individuals
To get supervisors’ and managers’ attention, says Segal, remind them that they may be personally liable for harassment under state law.
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How Does Harassment Hurt the Company?
Lawsuits aren’t the only threat that harassment can cause, says Segal. Harassment potentially causes damage in all these ways:
1. Threat of legal 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
- Punitive damages
2. Cost of litigation. Litigation is expensive. A typical basic case may cost $100,000 in legal fees, and that’s to say nothing of potential costs if the company loses the case.
And litigation is not easy because you are trying to prove the negative—that is, that whatever was alleged either didn’t happen or wasn’t pervasive enough to be actionable.
3. Lost time. Your managers will spend time in meetings, fact-finding, depositions, and court.
4. Adverse career consequences. There are almost certainly going to be adverse consequences for managers and supervisors who engage in harassment or tolerate it.
5. Productivity losses. There are bound to be direct productivity losses caused by the lost time mentioned above.
6. Employee relations. There’s also a morale issue. The atmosphere generated by the harassment claim may well drive away talented workers or applicants.
7. Public relations. Negative publicity is certainly not going to help the company.
8. Erosion of stock value. The poor publicity may cause stock price or company value to plunge.
9. Erosion of core values. Finally, Segal says, there is likely to be an erosion of the company’s core values.
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The Top 25 Behaviors That May Be Harassment
Some supervisors and managers need very specific guidance, Segal says, so he offers 25 specific examples of harassing behavior:
- Linking any employment decision or benefit to a subordinate’s submission or refusal to submit to sexual advances. This is always illegal.
- Asking for sex and other sexual advances or propositions, even if there is no demand or threat attached.
- Sexual flirtations, bantering, etc.
- Engaging in sex while at work.
- Repeated requests for dates. Even the initial request is risky if it involves a supervisory-subordinate relationship, Segal says.
- Sexually explicit or suggestive conversations, comments, questions, stories, etc., whether they are 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. This is always illegal.
- Unwelcome and/or inappropriate touching, such as patting, pinching, or brushing against someone.
- Sexual or suggestive “jokes.”
- Racial, ethnic, or religious “jokes” or “jokes” that 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 (for example, slavery) or violent crimes (for example, 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, or a KKK symbol.
- Hate slurs/epithets that relate to any protected group, such as the “N” word and the “C” word.
- Nicknames that relate to any protected group, such as “Grandma.”
- Stereotypic comments or “compliments,” such as “You don’t sound black; you don’t look Jewish; you don’t act gay.”
- Derogatory/unwelcoming messages, such as a “Speak English, or go home” sticker.
- Cursing and other foul language.
- Verbal or nonverbal innuendo of a sexual, suggestive, or threatening nature.
- Hostile behavior targeted at an employee because of his or her membership in a protected group.
- Other inappropriate or unprofessional conduct that relates to or is directed at a protected group.
“But It Didn’t Happen at Work”
Some people think that if behavior happens after work, it’s outside the purview of the company, but Segal reminds employers that the prohibitions against sexual harassment apply beyond the workplace, specifically:
- The prohibitions apply off-site at social and other events.
- The prohibitions apply to written, oral, electronic, and all other forms of communication (including social networking).
- The prohibitions apply to nonemployees, such as customers/clients/patients, contractors, and vendors and suppliers.
In tomorrow’s CED, Segal’s “5 Rs” for managers.
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