Last week, I shared with you what I didn’t like about the proposed Enforcement Guidance from the Equal Employment Opportunity Commission on workplace harassment.
Well, this is warm-and-fuzzy week. Moving on to the parts of the proposed guidance that I thought were well done, I’ve tried to boil the rest of the proposed guidance into nine key points. I’ll do one more post next week, covering the agency’s recommendations for employers, which are very consistent with what I’ve told employers for years. (In other words, they’re brilliant.)
Before we start: Comments on the proposed guidance are being accepted until February 9. Please do let the EEOC know what you think.
Fact 1: It’s not enough for the employee to be subjectively offended by the alleged harasser’s behavior. The behavior also has to be offensive to a reasonable person in the employee’s shoes. Generally, the fictitious “reasonable person” should be of the same protected category as the alleged victim. For example, if the alleged victim is African-American and claiming racial harassment, one should try to view the behavior from the point of view of a reasonable African-American employee, not a reasonable Caucasian employee.
For our readers who aren’t lawyers, the “reasonable person” standard is a longstanding concept in the law based on — well — on an imaginary person. I know that sounds weird, but here is why it’s useful. Let’s say I pass a male co-worker in the hallway (no touching or leering, I promise) and tell him that I like his tie. And let’s say that my male co-worker . . . has issues. He is genuinely offended by my “inappropriate” comment, and he sues me for sexual harassment. (Pro se, I’d think.) Without a “reasonable person” standard, I’d be sunk even though his reaction was irrational, because I definitely made the comment, and he was sincerely offended by my behavior. But would our imaginary “reasonable man” think it was offensive or inappropriate for me to pass him in the hall and say, “Nice tie”? Heck, no. Therefore, the judge throws out this ridiculous lawsuit.
Fact 2: Behavior can be “harassing” even if it isn’t directed at the individual victim. If, for example, a mostly-male workplace is full of nudie calendars and obscene talk, a female employee may have a valid harassment claim — assuming she is offended, and she probably is. Likewise, anonymous behavior, such as graffiti, can be harassing and can result in liability for the employer if the employer doesn’t do its best to find out who did it and stop it.
Fact 3: Behavior that occurs away from the workplace may result in employer liability. This could include harassing behavior that occurs at an off-site company function, as well as behavior that occurs completely out of the work environment (such as an employee who “stalks” a co-worker at her home after work). If the employer knows or should know that this type of behavior is occurring, the employer should take appropriate action against the harasser, just as if it had occurred in the workplace.
Fact 4: The “higher up” the harasser is, the more likely it is that the employer will be liable for what the harasser does. Harassing behavior by the CEO is 1,000 times worse than the same behavior by a co-worker.
Fact 5: Watch out for lead people. This is especially true on shifts, like third, where there may not be a true “supervisor” on duty at all. If an employee justifiably perceives a lead person as “the boss,” then making a harassment complaint to that lead person is probably going to satisfy the employee’s reporting obligations. That means lead persons need to know what to do — to either take the complaint immediately to the supervisor, or go directly to HR. In my experience, the best companies include lead people in their management harassment training, or they give them a separate session that covers the identical subject matter.
Fact 6: Although a harassment investigation doesn’t have to find guilt “beyond a reasonable doubt,” the investigation should be conducted by someone who is impartial, and the investigator should follow all possible leads.
Fact 7: “He said/she said” may or may not be an excuse for an inconclusive investigation. The investigator (through witnesses and other evidence, and perhaps with the help of others, including the company’s attorneys) should try to resolve the conflicting stories and make his or her best determination about what really happened. (That isn’t always possible, but it’s what we should strive for.)
Fact 8: If the employer determines that harassment occurred, it should take appropriate corrective action, meaning action that is “designed to stop the harassment and prevent it from continuing.” First, the punishment should fit the crime. A dirty joke should not be dealt with as severely as a sexual assault. Second, the harasser’s position in the company should be taken into account. The higher up he or she is, the more severely the behavior should be sanctioned. (See Fact 4.) Third, the action taken should be reasonably likely to stop the harassment. Fourth, the complainant should not be penalized (retaliated against) for having complained.
Fact 9: If the investigation is truly inconclusive (after you did your duty and conducted a thorough investigation, following all leads), then you are not legally required to take action against the alleged harasser. But you might want to consider “counseling, training, or monitoring” to make sure that no incidents occur in the future.