Most organizations’ anti-harassment policies follow federal guidelines that prohibit verbal or physical workplace conduct if it:

  • Is based on sex, race or another statutorily protected characteristic;
  • Is unwelcome; and
  • Causes tangible job harm or a hostile work environment.

The author notes recent survey results that find that employees are more likely to make inappropriate remarks when in the presence of those least likely to take personal offense. This puts many workplace actions or remarks outside the realm of the anti-harassment statutes, since they are not overtly “unwelcome”, nor do they inherently cause “job harm” or a “hostile work environment.”

The problem, according to the author, is that this suggests to employees that the organization condones otherwise offensive workplace behavior when no one is subjected to unwelcome conduct. Although there is no explicit unlawful harassment, the author strongly advises managers to intervene, since:

  • Employees who participate in such exchanges can have their behavior affected toward current and future employees of the targeted groups and contradict the employers’ mission of providing a respectful workplace.
  • Employees can be offended but feel uncomfortable expressing their offense and feel intimidated enough to laugh along.
  • An employee can overhear or otherwise find out about a co-worker’s or supervisor’s remark and take offense.
  • Managers effectively endorse bias if they tolerate discriminatory behavior.
  • Harassment claims against the organization have a higher chance of success if it’s found that managers were aware of but failed to stop such behavior even if the conduct was not directed at the employee.
  • The article offers court opinions related to the creation of discriminatory atmosphere as well as those holding that preventing workplace harassment and eradicating discrimination are compelling government interests justifying restrictions of workplace speech. The author does not, however, favor “zero-tolerance” policies, seeing them as neither practical nor effective. She favors a more nuanced standard and offers for example the US Chamber of Commerce guidelines for creating appropriate anti-harassment policies and the EEOCs anti-harassment policies for its own workforce.Employers are advised to make clear they will take corrective action to stop such behavior even if no one expresses offense. The nature of these actions should be tailored to the severity and circumstances of the behavior and guidelines are offered to readers. The article also explores the types of employee training that helps participants understand the line between appropriate and inappropriate behavior. It also provides readers with online resources for harassment articles, trend data and employment law.

    Link to original post: Elaine Herskowitz. HR Magazine; September, 2008, v53 i9 p139

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