HR Support on Preventing and Responding to Harassment at Work

Editor's Note: Identify and eliminate harassing behavior based on protected class status.

Beth P. ZollerOverview: In addition to sexual harassment in the workplace, federal law as well as most state law prohibits harassment against an individual based on his or her membership in a protected class. Therefore, individuals are protected from harassment based on race, national origin, religion, etc. Harassment may take the form of using insulting epithets, slurs or negative stereotypes; making rude and offensive jokes; threatening, intimidating or hostile acts; or written and graphic material such as cartoons that insult a particular individual or group based on that individual's or group's protected class.

To eliminate workplace harassment, employers should have a policy in place that strictly prohibits harassing behavior of any kind. All employees and supervisors should be provided with training on the policy. Further, employers should designate a multichannel reporting system to allow employees to bring workplace harassment complaints to the employer's attention. Further, employers should immediately respond to any complaints of harassment by investigating the matter and taking corrective action.

Trends: The EEOC has identified preventing harassment through systemic enforcement as well as targeted outreach and education efforts as one of its priorities in the most recent Strategic Enforcement plan. As such. there a significant number of harassment lawsuits being brought by the EEOC as well as individuals based on race, age, religion etc. As the workplace becomes more diverse, this has led to an increase in harassment suits of all kinds.

In Vance v. Ball State University, 570 U.S. (2013), the Supreme Court issued a critical decision which makes it more difficult for employees to prove that an employer is vicariously liable for a supervisor’s discriminatory or harassing conduct. Specifically, the Court held that a supervisor must be someone with the direct power and authority to take tangible employment actions against an employee. This issue is of primary importance when determining whether an employer is vicariously liable for a supervisor's actions in cases of harassment. Under the current law, if the harasser is a supervisor, the employer is automatically vicariously liable for the supervisor's actions. If the harasser is not a supervisor, the plaintiff must prove that the employer was negligent and that the employer knew or should have known of the harassment in order to be liable. This is a much higher burden to meet.

Author: Beth P. Zoller, JD, Legal Editor

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HR guidance on preventing and responding to workplace harassment, including instituting a policy, providing training to employees and supervisors, and immediately investigating harassment complaints.