Harassment in the workplace

Allegations of sexual misconduct in the workplace dominated the headlines in 2017, resulting in Time magazine choosing the #MeToo movement as Person of the Year for raising awareness about sexual harassment and assault.

Now, more so than ever, it's imperative for businesses to adopt policies as a proactive measure to protect their business from litigation brought on by employee harassment claims.

Workplace harassment can come in a variety of forms and is 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.

Sexual harassment

One of the most common forms of harassment that occurs in the workplace is sexual harassment, which can range from frequent, inappropriate and unwelcome sexual suggestions to coerced sexual relations to insulting or derogatory comments to physical assault.

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. 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.

Companies 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. Employer's 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.

Another proactive step to help prevent harassment litigation includes 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 also an agreement of understanding and willingness to comply with company standards. The education program should be an annual requirement for employment, and can demonstrate to a court that the company makes a concerted effort to prevent harassment in the workplace. Online programs are available through VGM Education and other trusted resources.

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 but are not limited to the following: race, sex, sexual orientation, age, physical or mental disability, pregnancy, religion or political opinion.

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.

According to Trusted Choice, the average court costs and legal fees when settled out of court can be 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. 

Today's work environment can be unpredictable. Proactive HME providers can reduce their level of risk when all employees receive regular training and fully understand the company's policies regarding harassment and employee rights, properly document any incidents and handle them accordingly, as well as provide an additional layer of protection with the proper insurance coverage.

Bill Wilson is vice president of sales and marketing for VGM Insurance. Reach him at 800-205-0091 or Bill.Wilson@vgm.com.