Sticks and Stones: Practical Suggestions for Preventing a Hostile Work Environment Based on Profane or Offensive Words
The United States Court of Appeals for the Eleventh Circuit (which includes Alabama, Florida, and Georgia) recently issued a landmark decision under which an employer could be liable for profane messages or statements that are not specifically directed towards the plaintiff-employee. In Reeves v. C.H. Robinson Worldwide, the plaintiff was subjected to hearing words such as “bitch” and “whore” in conversations between her co-workers, but no evidence established that her co-workers had called her those names. Nevertheless, the Eleventh Circuit concluded that certain gender-specific words could support a sexual harassment lawsuit, even if they weren’t used explicitly with reference to the plaintiff-employee. The Reeves case is important because it emphasized that words alone can be sufficient to establish a sexual harassment claim – even without evidence of inappropriate touching. This decision will likely mean that employers can more easily be subject to viable claims of a hostile work environment.
The Reeves case primarily involved the verbal exchange of words by employees in the office; however, the Eleventh Circuit’s decision is likely applicable to situations where harassing words are communicated by other means in the workplace or among co-workers. Most notably, employers are currently dealing with the relatively new phenomenon of “textual harassment.” What is that? Well, textual harassment commonly refers to the sending of offensive or inappropriate text messages. A recent survey shows that fifteen percent of teens who own cell phones had received nude or nearly nude images via text message from someone they know. The phenomenon doesn’t stop there: several employers (including a public university and a well-known entertainment company) have faced sexual harassment cases involving sexually explicit text messages. In addition, employers cannot ignore the increase in popularity of social networking sites (like Facebook or Twitter), blogging, and instant messaging, which means that employers should be aware of the increase in potentially harassing or inappropriate content that may be contained in these communications.
Employers may not be able to monitor or control all communications or workplace conduct. However, this article provides some practical suggestions for preventing hostile work environment claims.
Step 1: Protect Employees from a Hostile Work Environment
Step 2: Establish Accessible Reporting Mechanisms for Employee Complaints
An employer’s anti-harassment policy should encourage employees to come forward with complaints of harassment by detailing the complaint process. These complaints are a valuable source of information that enable the employer to promptly stop and correct any harassing conduct. If employees see that the employer takes all allegations of harassment seriously, future victims will be more comfortable coming forward with their complaints and potential harassers will be less likely to engage in harassment. Therefore, it is important for an employer to implement a reporting process that provides accessible avenues of complaint and a prompt, thorough and impartial investigation. For example, an employee who receives suggestive texts from her supervisor should be able to find the method for reporting in the anti-harassment policy and feel comfortable that he or she can report the complaint in confidence and without any risk of retaliation. One way to protect employee confidentiality is to set up an informational helpline for employees to discuss questions or concerns about harassment on an anonymous basis. If the helpline is not staffed 24/7, consider expanding its hours of operation to cover calls made after work. Reminders of how to report misconduct should be displayed on posters, pay stubs, and sign-in windows. Also, since a supervisor may very well be the harasser, do not require employees to complain first to their supervisors. Instead, provide contact information for at least one manager or official outside of an employee’s chain of command (an HR official, for example) to take complaints of harassment.
Step 3: Take Prompt Remedial Action to Address Concerns of Harassment
Finally, be sure to set up a mechanism for prompt, thorough and impartial investigations into alleged harassment. Determine if a fact-finding investigation is necessary, and if so, launch one promptly. Even if both the complainant and the alleged harasser have since left the company, employers should still consider conducting investigations into allegations of harassment. Conducting an investigation in this scenario still helps demonstrate to a judge or jury that you do not tolerate harassment and, where the alleged harassment was by a former supervisor, such investigation could still play a key role in defending a hostile work environment claim brought by the former employee.
To ensure the impartiality of any investigation, the alleged harasser should not have any supervisory authority over the person conducting it. Ideally, the person performing the investigation should be outside of the chain of command. It also may make sense to review the text messages, blogs, and posts to social networking sites to obtain an unbiased view of the nature of their communications. However, keep in mind that it is unlawful to obtain access to password protected electronic communications without the voluntary consent of the user. In other words, ask the employee if he or she is willing to voluntarily share the content with the investigator, but also make it clear that the disclosure would be voluntary and that the employee will not suffer in any way if he or she declines to share the content with the investigator.
Upon completion of the investigation, it is important to discipline and, in some egregious cases, terminate the employee as warranted. Be sure that any disciplinary measures are proportional to the severity of the offense and that they do not adversely affect the complainant. Also, keep in mind that it is important to enforce the terms of the anti-harassment policy equally among all employees, regardless of position or rank. For instance, it is difficult to send a message to employees that inappropriate language will not be tolerated when the CEO or other officer of the company is free to use such language without any repercussions.
Ultimately, while having an anti-harassment policy may be evidence of reasonable care in the event that an employer is faced with a harassment lawsuit, simply having a policy in place is not enough. Employers should use all possible means to widely distribute the policy, follow the policy closely, and consistently enforce it. This means taking those extra steps to keep a work environment professional and avoid the type of work environment that was created in the Reeves case.
If you have questions about how to revise your anti-harassment policies, how to conduct an effective investigation into allegations of harassment, or how to address potential concerns with textual harassment or other misuse of electronic communications mediums, please contact a member of Troutman Sanders LLP’s Labor & Employment Practice Group for assistance.