Monday, July 11, 2011

Are you liable for harassment that takes place in your business?

Litigation cases in the area of Workplace Harassment are continuing to increase. How do you define harassment in the workplace? It’s not as simple as it used to be. It is now defined as any type of unwelcome action toward an employee that leads to difficulty in performing assigned tasks or causes the employee to feel he or she is working in a hostile environment.

There are three phases to an employee filing an litigation case. First, there is unwelcome and offensive conduct. The harassment may be based on such factors as race, gender, culture, age, sexual orientation, or religious preference. Bullying and retaliation are also forms of workplace harassment.Second, the employee must voice his or her objection to the behavior, allowing the offending individual or individuals to correct their workplace behavior. Last, the conduct must be of a nature that makes an impact on the ability of the employee to carry out his or her duties in an efficient and responsible manner. Some forms of workplace harassment are more common than others. Unwanted sexual advances by peers or supervisors is the most oft cited form of workplace harassment but other forms are also on the rise.

Where does this leave you as an employer or manager? Are you liable for harassment that takes place in your business?

Yes, you as the employer are automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.When investigating allegations of harassment, the EEOC looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.

Innovative Leadership of the Delaware Valley, LLC offers the following Workshops that help your organization and management team avoid liability with this area of concern:
    • Workplace Harassment – This workshop is designed to teach managers and employees how to recognize, prevent, and manage workplace harassment including sexual harassment, bullying, retaliation, and more. This workshop provides a comprehensive overview of the legal and practical definitions and offers specific case studies to support the recommended actions.
    • How to conduct a Workplace Harassment Investigation – This workshop identifies the step by step process of a Workplace Harassment investigation from start to finish. Participants will take away all the tools to conduct their own investigation.

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