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Ask the Labor Lawyer #4 (How to Handle Employee Harassment)

Ask the Labor Lawyer #4 (How to Handle Employee Harassment)

Question:  I just received a complaint from one of my employees, let’s call her “Angela.”  Her co-worker, “Tom,” likes to share political memes, including slogans such as “Unborn Lives Matter.”  Angela claims Tom is harassing her and creating a hostile work environment.  What should I do?

Response:  No employer likes to receive complaints, especially where buzzwords like “harassment” are thrown around.  But complaints are just part of the modern workplace, as I have written elsewhere.  This is especially true in blue states which favor plaintiffs and their attorneys.

(Have you considered moving your business to Idaho?)

Nonetheless, by handling complaints wisely, you can reduce the risk of litigation.  Here are four steps to guide your response:

1. Understand the standard  

To constitute actual, unlawful harassment, the conduct must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.  The conduct must also be based on a protected category such as race, religion, sex, disability, etc.  See, https://www.eeoc.gov/harassment.

2. Investigate 

Employers have a duty to investigate claims of harassment.  This includes listening to both the complainant and the accused, reviewing relevant documents, and interviewing witnesses.  If the complainant feels threatened by the accused, you should separate them while you investigate.  But don’t make any final decisions until you have all the information.

3. Take appropriate action

Appropriate action will depend on the results of your investigation.  It could be as simple as reviewing your company policies with the accused and encouraging him/her to be more professional in the workplace.  But if the behavior is severe, it could also mean discipline or termination.

4. Don’t retaliate

Even if the investigation finds the complaint to be unfounded, you must continue to treat the complaining employee the same way you treat other employees.  This can be a little awkward, but I encourage you to push through.  The law requires it.

Now to address Angela’s complaint against Tom.  First, make sure to investigate with an open mind.  If, as you suspect, Tom is simply posting right-wing memes in his personal workspace, I encourage you to respect Tom’s right to free speech and not take further action.  However, if Tom is posting material that a reasonable person would consider sexist or racist, or if he is intentionally antagonizing Angela, you will need to address his behavior through your disciplinary process.

May your employees and your policies be governed by good sense,

Laura, The Labor Lawyer 

Please note that this post does not constitute legal advice on your specific situation, and you do not have an attorney-client relationship with Laura.  If you have questions for Laura, please send them to laura@redballoon.work.  Such questions may be used for general edification in this column.