Most employers say that they strive to foster a healthy and supportive work environment. And most of those employers mean what they say. Unfortunately, despite the grand words, the environment is not always perceived by employees in the way that the employer intends. Or even if it is, circumstances can arise in which employees nonetheless may be hesitant to raise problems they are experiencing at work. When it comes to providing a workplace free from illegal harassment, employers in general (and managers in particular) need to be particularly mindful of providing an environment in which employees feel able to come forward with their concerns.
Regardless of whether an employee is, in fact, being subjected to illegal harassment, it is important that employees are encouraged to report any inappropriate conduct. The federal, state, and local laws require most employers to investigate harassment complaints but if left unreported, the conduct may continue without checks and balances. And if an employee is being harassed, failure to investigate and address the conduct can lead to many unwanted results, such as loss of good employees, low morale, damage to reputation, and legal liability against the company and possibly against individual supervisors. Therefore, managers and human resources professionals are wise to position themselves as approachable and willing to help.
An employee who feels he or she is being illegally harassed may not come forward for any number of reasons. And the validity of the reason in each case can have a dramatic impact on the company’s ability to address inappropriate conduct and/or avoid a legal judgment against it. Part of a company’s defense to allegations of a hostile environment of harassment by a supervisor is that the complaining employee unreasonably failed to come forward. If it was unreasonable for an employee not to raise the complaint at work, an employer has an opportunity to try to avoid liability (unless the employer knew or should have known about the conduct regardless of whether an employee complained).
The flip side of the coin is that if an employee does come forward and cooperates fully with the company’s investigation, in most circumstances the employer will not be able to prove the affirmative defense to liability for environmental harassment by a supervisor. But there are good reasons why encouraging employees to come forward, even though the affirmative defense may not be available, is a benefit to the employer.
If an employee makes allegations of harassment, oftentimes the employer can resolve the issue internally to everyone’s satisfaction and litigation may never be filed. That’s a great result and the conduct has been stopped. Or, even if litigation is filed, the employer’s conduct in receiving, investigating, and acting on the results of the investigation can influence a jury when it comes to credibility issues and the amount of damages should liability be found.
So, encouraging employees to come forward with complaints is a benefit for everyone. But being aware of reasons why employees may not come forward is important because employers can try to address these issues beforehand. One reason why an employee may not come forward may be because the company’s written harassment policy is not well advertised among employees or made easily accessible. Therefore, an employee may not come forward because he or she does not know where to go. In this day and age of intranet HR policies and legal requirements in some states that all new employees be given a copy of harassment policies, this particular excuse may or may not be “reasonable.” But the lesson is that every company should have clear policies that are known by the employees.
Another reason why an employee may not come forward is because he or she actually likes the person who is the alleged harasser and does not want to get him or her in trouble. They just want the conduct to stop. Again, the reasonableness of this excuse is in question. But if a company makes clear that such conduct is a detriment to everyone in the workplace, the employee may feel some responsibility to bring it forward.
Some employees may feel it is futile to come forward because they have heard, whether or not it is true, that prior complaints were not addressed. The obvious way to control this is to make sure that investigations are conducted and responsive action is taken. Some employees may be constrained by cultural issues — perhaps it is not acceptable in a particular culture that women should discuss such things. Again, the reasonableness of this excuse in a business operating in the U.S. is not clear. But by encouraging and supporting diversity and making all employees feel welcome, employers also demonstrate support of sensitivity to cultural differences.
Some employees could fear retaliation if they come forward. Whether that is reasonable will depend on what the employee has experienced or heard about in the workplace with regard to other complaints, and whether, in fact, there has been retaliation for raising harassment allegations or any other serious issues. It’s also possible that an employee does not want to come forward for fear of being labeled a troublemaker or other reputation issues. The best way to address that is to demonstrate the seriousness with which you take your mission to provide a healthy and supportive work environment and not to engage in retaliatory conduct. Employees could also have some concerns about personal safety or having to reveal personal issues about themselves or others.
Regardless of the possible reasons, managers can help encourage employees to come forward by behaving professionally at work, establishing open communications with employees, and making sure employees know that they are approachable and take the employees’ concerns seriously. Human resources professionals can help managers position themselves in this way. And in doing so, managers are supporting a healthy work environment of which all employees can be proud. After all, inappropriate conduct at work impacts everyone. Even if it’s not illegal, there are many reasons to want the ability to stop it.
Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.
Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.