From the desk of Anne E. Hirsh, M.S., CDPM, Associate Director
Does your workplace have a conduct policy that addresses bullying and harassment? If so, have employees and supervisors been trained on the policy and would they know where to find it if needed? The Workplace Bullying Institute (WBI) 2014 U.S. Workplace Bullying Survey tells us that 27% of Americans have suffered abusive conduct at work, 21% have witnessed it, and 72% are aware that workplace bullying happens. According to EEOC Chair Jenny R. Yang, workplace harassment is alleged in approximately 30% of all charges filed with the EEOC. For more than a year now the EEOC has had a Select Task Force on the Study of Harassment in the Workplace. This is an important issue for employers to pay attention to.
The WBI defines workplace bullying as “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators. It is abusive conduct that is:
- Threatening, humiliating, or intimidating; or
- Work interference - sabotage - which prevents work from getting done; or
- Verbal abuse.
If harassment in the workplace is severe enough, an employer can be held liable. Not all bullying activity would be considered harassment for purposes of Federal law, but employers will still want to address the behavior. Employers need to understand how the EEOC defines harassment and who in the workplace may be protected by various Federal laws. Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the ADA of 1990. The EEOC does a great job of defining what could constitute harassment and who may be covered by the various laws.
On the EEOC Website there is a page that discusses harassment in the workplace. In this document EEOC states:
“Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.
Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.”
Whether the conduct issue rises to the level of bullying or harassment where the individual may have protection under Federal laws, employers should address the issue head-on. At JAN, we do receive inquiries from both employers and individuals on conduct and behavior issues that some who contact us allege may be workplace harassment. Questions from JAN customers range from how to prevent bullying and workplace harassment in the workplace, to whether a specific situation as described to us considered workplace harassment, to how to accommodate workers with disabilities should they need it when dealing with a workplace harassment situation.
Allowing a support person in meetings where sensitive issues (such as possible harassment in the workplace) will be discussed is an approach that may be helpful for all employees. Having a support person present at meetings with the employer is a form of reasonable accommodation that the employer must consider if an employee needs the support person because of a disability. In the EEOC guidance document Questions and Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act, “help in understanding job evaluations or disciplinary proceedings” is listed as a possible type of accommodation.
JAN has two resource documents on the issue of workplace harassment. JAN’s document on Employees Experiencing Workplace Harassment will help employees develop a plan should they feel they or someone they work with is being bullied or harassed. JAN’s document for employers titled Addressing Workplace Harassment: Employer’s Responsibilities will help employers review existing or develop new policies and procedures for preventing and dealing with workplace harassment.
Employers will also find the EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors to be a useful document. It further defines the issue, but also provides great information to again review or develop a policy. It also provides a great list of questions to ask parties and witnesses involved in a possible workplace harassment situation. Use of these questions can help an employer conduct a fair and impartial investigation into the alleged harassment.
This EEOC guide on Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors may also inform employers on steps to take to prevent harassment as well as address alleged harassment. As stated in the beginning of this article, bullying and harassment is prevalent in the workplace and cannot be ignored. Take a minute to locate your company harassment/conduct/workplace bullying/violence policy. Ask yourself if the average employee in your company could find it if needed. If the answer is no, it is time to revisit and train your workforce on your company’s culture of not tolerating workplace bullying, harassment, or any inappropriate conduct in the workplace.