More years ago than I care to mention, my then-employer required us to sit down and watch a sexual harassment training video. It featured all the cheesy portrayals of male managers hitting on female workers in the most obnoxious ways imaginable. The portrayals of sexual harassment were so over-the-top, so overly obvious and offensive, they made the television show “Mad Men” look tame.
Thinking and perspectives on workplace harassment have, thankfully, improved since those early days of harassment awareness training. Harassment is no longer limited to sexual harassment, which is just one form of workplace harassment. In fact, the EEOC has rightfully broadened the term to “hostile work environment”, a much more fitting phrase if you ask me. Still, there are plenty of gray areas in this field of human capital management. What constitutes a hostile work environment? How, why, and when does it become illegal? And how does your organization prevent it?
A hostile work environment becomes illegal when the recipient of some behavior feels that enduring the offensive conduct is a condition of their continued employment. In other words, if an employee feels that opposing behavior they find offensive could result in their termination, the organization has crossed the line (not just the person exhibiting the behavior) and exposed itself to (perhaps) devastating liability. Giving labor lawyers a field day, there are a lot of turns of phrase here that can be subject to interpretation, from what constitutes “offensive” behavior to how an employee can “oppose” behavior. Even who the behavior is directed at can be confusing: an employee may find the treatment of other employees offensive.
We think the best approach to defining what constitutes a hostile work environment is the broadest possible: any action or behavior on behalf of the organization that can be perceived as offensive to any employee should be initially addressed as a potential hostile work environment situation. In this case, it’s not fair to say it is a “guilty until proven innocent” style approach, but neither is it the expected “innocent until proven guilty” approach. All issues and questions must be taken seriously and thoroughly reviewed by the organization and appropriate action taken.
Each and every person in the organization should be trained in handling situations of hostile work environments, both as recipients and as observers. First and foremost, all employees must be given “safe harbor” for reporting what they believe, as subjective as that might be, is offensive conduct. This implies such a process is put in place: either a contact within HR, or better yet, an independent third party such as an HR help line. All employees must be empowered to raise the organization’s attention to offensive workforce behavior.
Secondly, all employees must be given thorough and adequate training on what the organization expects in terms of appropriate workplace behavior. Yes, this might mean showing them cheesy sexual harassment videos, but it’s critical not to limit “offensive conduct” to sexual harassment: the EEOC uses a much broader definition, and you will need to also should you find your legal team representing you in court.
Of course, training on what is acceptable and unacceptable workplace behavior implies very clear policy on workplace behavior. You have defined these policies, haven’t you? You have clearly documented these policies in your employee handbook, haven’t you? If you are our client, you have.
We can help keep you out of the hostile work environment hot water. For further information or to learn how we can support your talent management function (policy, practice, procedure), call us at 1.800.961.3053