MISCONCEPTIONS REGARDING THESE 13 “DEFENSES” TO WORKPLACE HARASSMENT
DON’T LET THESE MISCONCEPTIONS LEAD TO A CHARGE OF WORKPLACE HARASSMENT
There are certain misconceptions regarding workplace harassment, including what many supervisors believe are defenses to a charge of workplace harassment. These misconceptions are common, but may not be shared by your supervisors when sitting through harassment training.
It is important that you educate your workforce on the following “defenses” to workplace harassment as part of any supervisor training you do. Make sure your supervisors don’t use one of these flawed rationales to defend their indefensible behavior.
“But what I did or said wasn’t illegal.”
Comments or behaviors do not have to be unlawful to give rise to a charge of workplace harassment. Your policies should prohibit any conduct that the business considers unacceptable, even if it isn’t illegal. Emphasize that harassing behavior is unacceptable rather than unlawful. Do not wait for unacceptable behavior to become so bad it becomes unlawful.
“I didn’t intend any harm by what I said or did.”
Intent is irrelevant. You can make someone feel uncomfortable without any intent to do so. Make it clear to your employees that just because there is no ill-will doesn’t mean their conduct is acceptable.
“It was just a joke.”
It doesn’t matter whether something was supposed to be funny; if it involves making fun of someone’s race, gender, or religion, it can very well get you a charge of workplace harassment. This is not to say there isn’t room for humor in the workplace – there is. Make sure your employees understand that not everyone will find their humor to be funny and may even find it offensive – tread lightly.
“He/she never complained about that before.”
You should not assume that because there has been no prior complaints related to the same or similar conduct, that the conduct is acceptable or that the current complaint lacks merit. It is common for an individual not to make a complaint after one incident–waiting until there are multiple incidents or a pattern of behavior that makes them uncomfortable.
“The alleged harasser is a top performer, so it cannot be true.”
It is common, according to the Equal Employment Opportunity Commission, for employers to ignore or downplay bad behavior of a strong performer. It is possible to have an employee who excels in the business and engages in unacceptable workplace harassment. Do not downplay their behavior because they are otherwise a good employee. You should be holding your best employees to a higher standard, not lowering the bar.
“But it happened when the employee was off-the-clock/off-site.”
Don’t let your guard down just because it is after hours or off premises. Actionable claims for workplace harassment are not limited to business hours or the worksite. The most common scenario where these claims arise is at company-sponsored social events (i.e. the company holiday party). Harassment is about the relationship between the parties, not location.
“He/she is like that with everyone.”
Great, you have an equal opportunity harasser. Just because you have an employee who is equally abusive to everyone, doesn’t mean there is not a potentially actionable claim for workplace harassment. If this equal opportunity harasser is even slightly more abusive to someone in a protected class, your company can find itself in hot water legally. Additionally, any company that tolerates such behavior will hardly be the employer of choice for prospective employees.
“But what I said wasn’t sexual or race-related.”
Simply treating someone in a hostile manner because he or she is a member of a protected group is workplace harassment. Remember, sex/gender and race are just two of a protected classes recognized by law. Hostility towards someone because of his/her age, religion, etc. can also get you into trouble.
“But he/she is a customer, not an employee.”
Harassers do not have to other employees, they can be customers, vendors, or any other third party that interacts with employees. If a supervisor sees, hears, or otherwise becomes aware of harassing behavior by a non-employee with whom an employee interacts, he or she is obligated to do something about it.
“You cannot harass someone of the same sex, race, religious group, etc.”
Yes, you can. Individuals of a protected class can be unlawfully harassed by members of the same protected class.
“I was so drunk. I didn’t know what I was saying or doing.”
Alcohol will always make the probability of harassing behavior occurring more likely. That little voice in the back of your head that would normally tell you not to do or say what you are about to do or say is on break when alcohol is involved. The “Jack Daniels made me do it” defense is not a viable one.
“But he/she was going along with it.”
Harassment includes an element of unwelcomeness; the conduct or behavior must be unwelcome. Someone seeming to participate in the harassing behavior does not mean he or she welcomed it. We have all heard of people going along with objectionable conduct out of fear of retaliation for speaking out. Do not make assumptions.
“The comment/conduct wasn’t even directed at him/her.”
The person who is the target of harassment isn’t the only person who has an actionable claim. Anyone who witnesses or becomes aware of the harassing conduct can make a complaint. The person who is the target of harassing behavior may never complain out of fear of making the situation worse. That doesn’t mean the behavior is acceptable or not actionable.
Don’t let your workplace become a place where harassment is deemed acceptable behavior due to any of these misconceptions. Train your managers and supervisors with these misconceptions in mind.
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