Over the past 20 years I have helped employers, unions, and workers to prevent, detect, and eliminate workplace bullying and harassment. Over that course of time, I have come across a number of critical mistakes that employers should avoid.
#1: Hesitation to Implement a Policy Out of Fear of a Flood of Complaints
Not only is this hesitation out of place it is unproductive. The reality is that taking the step to complain about workplace harassment or bullying is a huge and scary step for targets to take. This will particularly be the case in an employment setting where the policy has been absent or lacking.
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However, the bigger problem with this concern is an underlying issue. This suggests that the employer may not want to truly address workplace harassment. Whether the harassment or bullying is being reported it is costly in terms of productivity and human costs. The astute employer will hope that all claims of harassment are brought to their attention so that they will be able to eliminate and correct the bullying behaviors and assure dignity for all of their workers.
#2: Only Focusing on Eliminating Legal Liability
Employers definitely need to take steps to meet their legal obligations to prevent, detect, and remedy workplace harassment. However, there are many additional practical, ethical, and strategic reasons to eliminate all forms of bullying and harassment from a workplace, even those that employers are not obligated to address from a legal standpoint.
Bullying whether it is based on a protected class or whether it has risen to the required level of severity or pervasiveness under the EEO laws is damaging to the targets, bystanders, morale, and productivity. Bullying in all forms leads to increased health problems for those surrounded by the bullying. Bullying leads to depression, a hostile working culture, decreased morale, increased absenteeism, turnover, and decreased productivity. Bullying can even lead to illnesses, deaths, and workplace violence. Employers should look to eliminate all forms of workplace bullying.
#3: Allowing Small Problems to Become Large Problems
When objectionable behaviors are identified early they stand the greatest chance of being corrected without the target or the workplace suffering harm. However, many employers will wait to deal with an issue until it has met the legal standard for a hostile environment. At this point, the problem is difficult to correct without taking what are often extreme remedial measures. At this stage the target is likely to have suffered permanent harm.
Employers should recognize that when a target brings a claim forward, if it is not addressed, they are unlikely to come forward a second time, even if the behaviors become worse. At the same time, the unaddressed objectionable behaviors are likely to continue and to grow and to expand throughout the working environment. Each claim of harassment or bullying behavior should be taken seriously and where behavior is inappropriate, objectionable or hostile steps should be taken.
#4: The ‘Sexual’ Harassment Policy
Too often still today, employers have one antiharassment policy and they label it a “Sexual Harassment” policy. It is not hard to understand why this continues. For decades, sexual based harassment cases have received the most media attention and the biggest headlines.
Harassment that is sexual in nature is still a major problem in the United States—we can simply look to the recent Redbook survey and the recent Fox News case to see how serious of a problem this continues to be.
However, harassment of a sexual nature is just one form of unlawful harassment that is part of one protected class based harassment. Sexual harassment is often confused for the broader term of gender based harassment. However, most harassment that is based on gender is not sexual in nature and gender based harassment is just one form of unlawful harassment.
Racial harassment, national origin harassment, harassment based on age status over 40, harassment based on religion, color, or disability are all forms of harassment that are unlawful under the federal level EEO laws. Gender based harassment is common—in fact it might entail about 1/3 of all unlawful harassing behaviors.
However, if we understand that less than half of the claims of gender harassment are sexual in nature, and that only ¼ of all harassing behaviors are even based on a protected status, we see that a “sexual harassment” policy in name may only address around 4% of all harassing behaviors.
When employers label their harassment policy a sexual harassment policy they send the wrong message. Rather than letting employees know that they take all forms of harassment seriously, they send the message that only one form of harassment is of concern and perhaps even that their policy only addresses one form of harassment.
This mistake could even lead to a court deciding that a target of other forms of unlawful harassment acting reasonably in believing that the policy did not address other forms (i.e. race based, national origin based, etc.) forms of harassment. Employers should implement broader policies in both name and practice to effectively address harassment and bullying in their workplaces.
Other mistakes include:
#5: Not taking effective steps to prevent retaliation.
#6: Relying on proving at trial that behaviors were not unlawful harassment.
#7: Ineffective policies—especially investigations and remedies.
#8: Overly broad policies that limit employee rights under the NLRA.
#9: Allowing for the equal opportunity abuser and relying on this defense.
#10: Overly burdensome reporting systems or steps.
Join us on May 24 for an all-new webinar on civility and respect in the workplace that will illustrate the legal steps employers may take and the legal limits of controlling employees’ speech and maintaining civility in the workplace. Click here to register.
 Jerry Carbo, Esq., professor of management and marketing at Shippensburg University, is also an attorney who consults with numerous mid-size employers on workplace harassment, bullying, and other issues that affect the workplace. He was chosen as one of 17 experts to serve on the EEOC Strategic Task Force to Study Workplace Harassment. His teaching areas include business and society, labor relations, employment law, organizational behavior, and sustainable management. Dr. Carbo’s research covers workplace bullying, labor revitalization, and sustainability. He has published his research in numerous publications, and is a member of the West Virginia State Bar. You can visit his law office’s Facebook page – The Law Offices of Jerry A. Carbo II. He recently published the book Understanding, Defining, and Eliminating Workplace Bullying: Assuring Dignity at Work, (Routledge, 2017). |