Opinion: Don’t wait for formal complaints to take action

Joan McGuire

Managers have an obligation to respond when they see harassment.

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In today’s environment, it may seem that people freely speak up when they are the victims of workplace harassment, but most HR professionals and employment attorneys will tell you that’s not the case. The #MeToo movement has helped make great strides for victims of workplace harassment to stop suffering in silence, but there is still a lot of work to do.

The reality is that harassment in the workplace is drastically underreported. In 2016, a task force that was commissioned by the Equal Employment Opportunity Commission found that only 30% of employees who experienced harassment reported it to a manager. In fact, the report indicated that only between 6% and 13% of people filed a formal harassment complaint, while the remaining employees most commonly tried to: (1) avoid the harasser, (2) downplay the gravity of the situation, or (3) ignore the behavior.

These statistics are discouraging. Employers are required to provide a harassment-free workplace, but if no one is telling you when harassment occurs, then how can you help? While there is no silver bullet for eradicating bad behavior from your workplace, there are a few steps you can take to create an environment where people feel safe to speak out.

If your manager observes or learns of behavior that violates your harassment policy and does nothing about it, the inaction will create legal liability just as if the company failed to act on a formal harassment complaint.

Most employers have a formal harassment policy that specifies how an employee should report inappropriate behavior, such as talking to the HR department. While the Equal Employment Opportunity Commission task force report showed that most employees don’t follow formal reporting procedures, they may be telling you about inappropriate behavior in other ways.

Your managers are the eyes and ears of your company and it’s possible they know more than they think. Managers often say they knew about violations of the harassment policy (e.g. dirty jokes or inappropriate name calling), but since no one complained, the manager never did anything about it. Managers also sometimes receive informal complaints, where an employee confides in the manager about harassment, but insists they don’t want anything done about it.

From a legal standpoint, your managers have an obligation to respond when they witness harassment or receive information from an employee who was a victim, even if no formal complaint is ever filed. The company is liable for co-worker to co-worker harassment if it knew or should have known about the behavior. So if your manager observes or learns of behavior that violates your harassment policy and does nothing about it, the inaction will create legal liability just as if the company failed to act on a formal harassment complaint. For this reason, it’s important that your managers and supervisors understand what to do if they witness or hear about conduct that violates your harassment policy.

Employers often want to discipline an employee for failing to follow the reporting procedure, but you should rethink that plan. There may be valid reasons for an employee to avoid the formal channels, such as feeling intimidated by HR or questioning whether their supervisor can be impartial during an investigation. Rather than punishing an employee who didn’t come forward, engage in a conversation about the important role employees play in combating workplace harassment.

You’ll also want to take proactive steps to protect the employee from retaliation by monitoring how an employee is treated after harassment issues have come to light. If anyone retaliates against a co-worker for speaking out, that person should be immediately disciplined. You need to send a message that employees are safe to speak out and will be protected after they’ve done so.

Finally, as the commission task force noted in its report, the biggest impact that employers can have on workplace harassment is to create a culture where bad behavior isn’t tolerated. Too often companies think that having a harassment policy and conducting minimal training is enough, but it goes deeper than those simple steps.

Create systems within all levels of your organization that hold people accountable when they fail to honor diversity, inclusivity and respectfulness. Organizational leaders set the tone for your company culture. If your leaders condone or endorse bad behavior then you can expect other employees to follow suit. By extension, you can also expect employees to be reluctant to speak out if they perceive that leadership already knows or won’t do anything about it.

Managers (including top leadership) should receive training to learn: (1) how to prevent harassing behavior, (2) their responsibility when they see or hear of inappropriate conduct, (3) how to encourage employees to speak out, (4) how to protect employees from retaliation, and (5) ways to foster a diverse, respectful and inclusive workforce. In addition, all employees should hear they’re valued and respected, and that it’s safe for them to report harassment issues.

If you assume that harassment isn’t an issue at your company because no one has formally complained, then you’re already behind the eight ball. You need to start combatting workplace harassment before a formal complaint is filed. Educate managers to respond when they see or hear something that raises a concern and protect employees from retaliation. All leaders should model good behavior from the top down.

Diane Buisman is the legal director for law firm Vigilant.