Though the hiring and firing periods of employment are when an employer is at the greatest risk for litigation, lawsuits based on the company’s employment practices can happen at any time. Poorly worded policies or a manager’s passive attitude can embroil an entire business in the complaint of a single employee.
Workplace harassment can come from a lack of managerial action as easily as it can come from offensive behaviour. The best method to limit a company’s risks is to ensure all employees have a solid understanding of company policies and the rights they are entitled to. It is the employer’s legal duty to make clear rules for workplace conduct and to make certain every employee understands and follows them.
Workplace harassment is one of the most difficult risks for an employer to control. Whereas most forms of litigation come after company management for the deceitful or improper actions they took, harassment suits usually seek to blame managers for the ignorant or hateful actions of their employees.
Harassment is any form of malicious or exploitive behaviour that alienates or damages an individual to the point of affecting employment conditions. Harassment can be caused by co-workers or managers, either individually or in groups. When the harassment is pervasive or repeated, the situation is deemed a hostile work environment.
No matter what party is responsible for the harassment, the employer could quickly be implicated in an employee’s complaint. While it will be difficult for an isolated incident of co-worker harassment to be blamed on management, every instance of harassment should be regarded as extremely serious. Managers should investigate and document all cases thoroughly.
Types of Harassment
Though harassment includes a variety of offences, one of its most common forms is sexual harassment. While there are blatant acts of sexual harassment (threatening to fire subordinates if they do not grant sexual favours; an openly discriminatory system of promotion and pay) some less aggressive forms can be the result of one employee paying too much attention to a co-worker or an improper joke that had no direct target.
What constitutes sexual harassment is not always clear. Opinions on offensive behaviour vary widely, and courts often have to spend time deciding what constitutes normal behaviour. As a general rule, if an employee is ever made to feel uncomfortable or harassed, he or she should report it immediately so the offensive behaviour can be stopped.
General harassment claims are as serious as sexual harassment. It is surprisingly easy for people to develop a group bias that results in the exclusion of one co-worker or creates favouritism for similarly minded employees. Managers should watch for harassment at all times and talk to individuals who have displayed clear signs of discriminatory behaviour based on race, ethnicity, disability or religion. The latter is a common pitfall, as it is often visually indiscernible and co-workers may feel they have religious superiority or no rational reason to be considerate of another person’s beliefs.
Workers should feel as though they can report harassment without any threat of repercussion. At least two different channels for reporting harassment should be set up in case one is compromised or directly connected to the harassment. If employees do not feel they can report harassment safely, managers may not be aware there is a problem until litigation for a hostile work environment and negligent management is filed. Workers should be trained to recognize harassment of co-workers and be taught to treat offences seriously.
Employers can also be held liable for harassment that happens away from the workplace. Job-sponsored events are often considered to be under a company’s liability. Although harassment completely outside of any work-related functions is not the company’s responsibility, employers should be open to receive reports of any harassment incidents between two employees and speak with the offending party. While an employer cannot reprimand or punish employees for actions performed in their free time, he or she can remind them that there will be no tolerance for similar actions in the workplace and, if necessary, make accommodations to isolate them from the targeted employee.
The best general action an employer can take to prevent harassment and negligence litigation is to make sure all employees receive training and are made to sign an agreement that they understand and will comply with company standards. This training should happen on a regular basis, not just when employees are hired. Demonstrating and reminding workers of the severity of harassment can keep adverse actions from ever occurring and can prove in court that managers made genuine preventive efforts.
Negligence in Hiring
In certain cases, employers can be sued for negligence after a first incident of co-worker harassment. If a new employee is accused of physical harassment and it is discovered that he or she has been reported or arrested for similar behaviour prior to being hired, a plaintiff could claim the employer showed negligence in hiring. Employers should do thorough background checks on all job applicants to ensure they pose no threat to current employees.
Proper action by company managers and HR representatives is useless if it does not get properly documented and stored. When litigation is filed, courts usually look to the employer to provide the necessary documents and records pertaining to the suit. Failure to produce these records can cast suspicion on the company. Since jury biases tend to be against companies, a business needs solid proof that its managers took the proper steps to prevent problems and inform employees about their rights.
Every company should have a policy and official forms for handling complaints. Every complaint should be logged and investigated using prescribed methods. Any notes about how the complaint was resolved should also be put on record. These forms can be essential for establishing details later on.
Having every employee read and agree to a company handbook is one of the most important things a company can do to protect itself and educate its workers. Handbooks should be written carefully and list rules for employee responsibilities and rights. Managers should be subject to the handbook as well and carry out all investigations and evaluations with the rules of the handbook in mind. Handbooks should be reviewed by legal professionals that can guarantee that the company’s policies conform to national and provincial guidelines.
As long as there are employees, there will be some risk for harassment. Well-made policies and incident documentation can greatly decrease your company’s exposure, but cannot help if litigation occurs. Employment Practices Liability insurance is used by many companies to cover harassment risks and mitigate expenses when unavoidable claims are filed.
© Zywave, Inc. All rights reserved