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Harassment in the Workplace – What Can You Do to Minimize the Risk?

Litigation based on an organization’s employment practices can occur for many reasons. Poorly documented policies or a supervisor’s management style can involve a company in even a single employee’s complaint. And, in light of the many highly publicized cases in the media in recent months, it’s more important than ever for companies of all sizes to learn and adopt harassment policies as a proactive measure to protect their business.

A business can reduce its level of risk when all employees fully understand the company’s policies regarding harassment and the firm’s employee rights and responsibilities.

Workplace harassment can come in a variety of forms. According to the U.S. Equal Employment Opportunity Commission (EEOC), workplace 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 Americans with Disability Act of 1990 (ADA).

Workplace harassment is also one of the most difficult risks for an organization to control. While harassment can be caused by managers or employees, either individually or as a group, the goal of most harassment litigation is to blame the company for the actions of its employees. Regardless of who is the harasser, the company can be implicated in an employee’s lawsuit; therefore, all harassment complaints must be taken very seriously and acted upon immediately by management.

Forms of Harassment

One of the most common forms of harassment that occurs in the workplace is sexual harassment, which has dominated the news for the past several months. Sexual harassment can range from frequent, inappropriate sexual suggestions to coerced sexual relations; from insulting or derogatory comments to physical assault. It is undesirable, inappropriate sexual attention at work, including:

  • Unwelcome, unwanted, and/or uncomfortable sexual advances or conduct.
  • Requests for sexual favors.
  • Other verbal or physical conduct of a sexual nature.

Harm caused by any harassment – sexual or otherwise – is often extreme, including humiliation, loss of dignity, psychological (and sometimes physical) injury, and damage to professional reputation and career. 

There are many actions and behaviors that leave no doubt that harassment has occurred. But where behavior is not so blatant, the question of defining how a reasonable person would interpret the behavior becomes very important. 

Harassing behavior is determined by the perspective of the person who is the target of the harassment and the perspective of any witnesses. The perception of the alleged harasser that there was no intent to offend another person does not legitimize that person's behavior. Lack of intent is not a defense to a claim of harassment.

Certainly there are times when misunderstandings occur among employees, but harassment of any kind in the workplace should not be tolerated. A company should have in place policies outlining workplace conduct, and it is the company’s legal duty to communicate those policies and ensure all employees understand and adhere to them.

Employees should feel they can report harassment without threat of retaliation. The employer should establish reporting procedures that include at least two channels through which employees can report harassment for situations in which one of the channels is compromised or is involved in the harassment.

An employer can take other proactive steps to help prevent harassment litigation, including implementing a workplace harassment education program where all employees – from the CEO on down – are required to attend and sign not only proof of participation but an agreement of understanding and willingness to comply with company standards. The education program should be an annual requirement for employment. Such a program can demonstrate to a court that the company makes a concerted effort to prevent harassment in the workplace.

For online continuing education programs, including workplace harassment, contact VGM Education at 866-227-8171, or visit their website at www.vgmeducation.com.

Protected Attributes

Discrimination on the part of the employer against an employee or prospective employee because of a protected attribute is another form of harassment that can occur in the workplace. Protected attributes include the following:

  • Race
  • Color
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Marital status
  • Family or career responsibilities
  • Pregnancy
  • Religion
  • Political opinion
  • National citizenship
  • Social origin

Company supervisors as well as company policy handbooks are considered representatives of a company and its culture. If, for example, an employee is ignored, punished, or fired because of a protected attribute, it could result in that employee bringing a lawsuit against the company. To minimize the risk, make sure your written policies are unbiased and that you place trustworthy individuals in managerial and supervisory positions.

Documentation

As the saying goes, “If it isn’t documented, it didn’t happen.” In other words, regardless of what actions a manager or an HR department takes following a harassment claim, it’s of little consequence if not appropriately documented.

If a lawsuit is brought against a company, the company will need to provide proof of the facts in the form of documentation. The company needs to offer proof that its management staff took the proper steps to avoid problems, to educate employees about their rights, and that when the issue took place, responded quickly and appropriately.

Insurance Considerations

It’s important to note most General Liability policies do not cover employment practice-related claims. Therefore, it is essential for organizations to consider an Employment Practice Liability (EPL) policy to protect from lawsuits brought by employees, directors and officers, volunteers, and even third parties.

Each year there are more than 90,000 charges filed to the Equal Employment Opportunity Commission (EEOC) with more than two-thirds originating from race or sex. Even lawsuits that are thrown out of court or won by your company can be expensive due to the high cost of securing legal defense. According to Trusted Choice, the average court costs and legal fees when settled out of court can range up to $50,000, but when these lawsuits go to trial, these costs skyrocket to more than $200,000. 

Having a properly written EPL policy will protect your company, along with a defense counsel specializing in employment practice law.  

For more information about Employment Practices Liability, check out our blogs here and here.

To learn more about our coverage options, or to speak with one of our business insurance experts, call us at 800-362-3363, or email us at info@vgminsurance.com.

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