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Avoiding the Negative Effects of Harassment

If you don't deal with harassment

For one thing, emotional distress can lead to absenteeism. So, indirectly, harassment may cost the company a great deal in lost productivity. Workplace harassment also affects employee morale. It's hard for an employee to stay enthusiastic when the workplace has become a hostile environment. And when other employees see what is going on, they may feel that they aren't safe either. As harassment damages workplace relations, it disrupts teamwork and cooperation among employees. These all have a domino effect on company performance.

Legal sanctions

Besides the potential damage to the company's reputation, employers face serious legal sanctions under federal and state law:

• victims may be awarded back pay for the time they aren't at work due to the harassment
• employers may be required to pay compensatory damages to the victim for the emotional distress caused by the harassment
• the court may order that a victim be reinstated, promoted to a former position, or promoted to a new position if he or she lost a position after refusing to submit to harassment, which is known as equitable relief
• employers may also be ordered to pay attorneys' fees to victims to help cover legal costs that can easily amount to tens, or hundreds, of thousands of dollars
• in some situations, a court may issue a cease and desist order to require the employer to put a stop to the harassing behavior

Apart from sanctions that employers may face, in some states managers can also face individual liability – with civil and criminal penalties – for harassment they commit. Where an employer's conduct is found to be intentional, willful, or malicious, the courts may permit an award of punitive damages. Punitive damages are intended to punish the employer and to discourage further bad-faith conduct. For this reason, punitive damage awards are usually quite large. More than 30,000 claims of harassment have been filed annually with the EEOC in recent years. In 2011, the EEOC recovered over $100 million in monetary awards for harassment victims. This figure does not include the awards obtained by victims through litigation, which typically run into the hundreds of millions of dollars.

The high incidence of harassment claims – and the monetary penalties they represent – clearly indicates that harassment is not an issue any organization can afford to ignore.

Various states and municipalities have enacted measures that go beyond federal requirements, in order to further safeguard against discrimination and harassment in the workplace based on disability, sexual orientation, marital status, and political affiliation.

Affirmative defense

Employers can reduce liability for employee wrongdoing by an "affirmative defense." There are two elements. First, the employer must show it took reasonable steps to prevent harassment from occurring. This means demonstrating that it established an antiharassment policy, that its managers and HR personnel responded quickly to harassment complaints, and that it protected complainants from retaliation. Second, the employer must show that the complainant didn't take advantage of opportunities provided by the employer to correct the harassing behavior.

Having an antiharassment policy

As we've discussed, a company can help prevent harassment by implementing a clear policy. The EEOC recommends that employers cover the following four areas in their policies: the company's commitment to its employees, definitions of prohibited conduct, procedure for complaints, and training requirements.

To ensure employees have a clear understanding of prohibited behaviors, there are two other items the policy should include:

1. definitions of different forms of harassment, including sexual harassment
2. examples of prohibited conduct

The antiharassment policy should also provide information about the procedure for making and resolving complaints:

• the complaint procedure, including multiple points of entry for employees who wish to make a complaint
• the process the company will use to investigate complaints
• corrective action or disciplinary measures available to the company in addressing harassment
• employee training requirements

Vicarious liability

As a manager, it's vital you understand that your actions at work represent the company as a whole. In legal terms, this is known as vicarious liability.

Managers are typically involved in decisions about such things as hiring, firing, promoting, demoting, assigning work, and compensation. These are known as tangible employment actions because they result in a meaningful change in employment status.

The affirmative defense can't be used to limit the employer's liability in cases involving illegal harassment by a supervisor or manager that results in a negative tangible employment action. There are two actions that are typically involved:

1. quid pro quo harassment
2. retaliation

Workplace harassment has many negative effects, including reduced morale and productivity, and a range of legal sanctions that may be imposed on the company.

Companies can sometimes use an affirmative defense to limit their liability if they can show that they've taken reasonable steps to prevent harassment. However, under the concept of vicarious liability, the affirmative defense is not available to limit the company's exposure in the case of a manager's unlawful harassment if the victim suffers a negative tangible employment action.