By David Kern & Jonathan Bernstein
The Legal Perspective
by David Kern, Quarles & Brady LLP
Under Federal Law and the laws of most individual states, a variety of protections against discrimination exist. For example, Federal Law prohibits discrimination based on age, race, sex, disability, religion, color, and national origin. State laws often go farther, prohibiting discrimination on such bases as sexual orientation, marital status, conviction record, and the like. These laws prohibit discriminatory treatment based on any protected status, and also prohibit employers from allowing employees to be subjected to harassment on any protected basis. Employees may bring claims before the EEOC or a counterpart state agency alleging that they have been subjected to hostile environment harassment on the bases enumerated above.
The elements of the hostile environment harassment claim are that the employee was subjected to an unwelcome and offensive work environment based on their protected status, which interfered with their work performance. The hostile environment must be subjectively unwelcome to the particular employee, in the sense that they did not invite the behavior, and objectively offensive, in the sense that a reasonable person in the plaintiff’s position would find the treatment to be unreasonable, offensive, and an interference with work.
Examples of hostile environment harassment, such as sexual harassment, include unwelcome touching, leering, sexually oriented jokes or cartoons, sexually oriented comments and epithets, and even staring at an employee’s body. Hostile environment harassment can also occur based on racial or religious jokes, ethnic insults, offensive emails relating to protected characteristics, and similar inappropriate workplace behavior.
Employers can be liable for hostile environment harassment engaged in by their supervisors and fellow employees. Employers can be liable for compensatory damages (such as damages for emotional distress) and punitive damages, even if the victim has suffered no tangible loss of benefits such as a firing or a demotion. Perhaps worse, evidence that an employer maintains a hostile environment can be used in support of other discriminatory treatment claims to show that the employer is insensitive to work- place behavior that denigrates others. For example, an individual plaintiff may bring a race discrimination claim over his/her firing and use evidence that the employer tolerates the telling of racial jokes in the workplace as evidence in support of the claim of a discriminatory motive towards that minority employee. In such cases, jury outrage can be a significant factor in an adverse award.
Employers can prevent and eliminate such hostile environment harassment by maintaining and diligently enforcing a policy against such harassment. If an employer maintains and publicizes its anti-harassment policy, and if a victim of harassment fails to utilize the policy to attempt to correct the problem, an employer may be able to defend such a claim successfully. As in most situations, it is clear that preventing such behavior from occurring in the first place is the best defense against hostile environment harassment claims.
The PR Perspective
by Jonathan Bernstein
The PR side of this issue relates to three essential principles of crisis prevention and response:
- Perception IS reality.
- Policy that doesn’t include training, monitoring and enforcement is often a starting point for crises.
- Every employee is a PR representative for the organization, whether you want them to be or not.
I have worked with countless organizations whose leadership and legal counsel were convinced that they were in compliance with all labor and employment laws.
But, in some cases, their employees didn’t agree. Some of those employees sued them or filed EEOC complaints — and regardless of the eventual legal outcome, damage was done.
Many of those employees gossiped — to each other, to customers, to people in the outside community. All causing damage to the organization’s reputation.
A comprehensive vulnerability audit of any organization should involve both PR and legal review of all existing human resources policies. First for legal compliance. Then from a “reality check” viewpoint, asking questions such as:
- Do our employees actually understand the policy?
- If we think they do, how do we know that (hint: if the answer is “because they signed a form saying they’d read the policy,” you should consider a more valid test of reality)?
- Do our employees think that we “walk our talk” regarding creating a friendly, versus hostile, environment?
- Do we know how our employees describe the work environment, or other HR-related matters, when they go home?
Teamwork between HR professionals, legal counsel and PR professionals who understand the above can help prevent or at least minimize damage from many of the crises that relate to employment matters.
David Kern is a partner at the law firm of Quarles & Brady LLP, www.quarles.com, where he chairs its labor and employment practice group. Email: [email protected].