Combating Harassment and Bullying in the Workplace

In recent years, harassment and bullying have received increased attention in the media.  When this type of conduct occurs in the workplace, it can have vast implications for restaurants and other employers.  This article addresses how to identify harassment and bullying in the workplace, and suggests best practices for preventing and responding to such behavior.

Bullying Versus Harassment: Is There a Difference?

Many people use the terms “harassment” and “bullying” interchangeably to describe behavior that is physically or emotionally harmful or threatening, and often imposed by someone with real or perceived power over the victim.  This behavior may constitute unlawful harassment (and discrimination) when it is imposed against a victim based on a characteristic protected by law, if:

• The behavior creates a hostile work environment;
• Submission to or rejection of the conduct is used as a basis for an employment action; or
• Submission to the conduct is made a term or condition of employment.

 

Such harassment is considered a form of illegal discrimination, and is widely prohibited by federal, state, and local laws throughout the United States.  Bullying behavior in the workplace can constitute illegal harassment and discrimination and, like harassment and discrimination, can violate other laws as well (for example, laws prohibiting assault).   Unlike harassment and discrimination, however, there is no federal law prohibiting general workplace bullying in the United States, although there have been recent efforts in some states to impose obligations on employers relating to workplace abusive conduct.  For example, a few years ago (effective 2015), California amended its sexual harassment training law to require employers with fifty or more employees to train their supervisors on “abusive conduct,” and the definition of “abusive conduct” does not depend on whether the behavior is imposed on an individual because of sex or any other protected characteristic. 

Even when bullying behavior is not illegal, it can still be just as harmful to a company’s morale and productivity as unlawful harassment.  As a result, restaurants and other employers should endeavor to recognize and respond to all abusive behavior that may occur at the workplace—regardless of how it is defined.

Recognizing Abusive Behavior

Numerous federal, state, and local laws prohibit harassment and other forms of discrimination against applicants and employees with respect to pay, terms, conditions, or privileges of employment because of such individuals’ protected characteristics. Many of those laws also prohibit retaliation against employees for good faith reporting of discrimination, harassment, or other violations of law.  The characteristics protected by harassment and discrimination laws vary depending upon the jurisdiction, but generally include:

• Race;
• Color;
• Sex/Gender;
• Pregnancy;
• National origin;
• Religion;
• Age;
• Disability; and
• Veteran or military status.

Unlawful harassment can take many forms. It can include: verbal statements (such as threats, slurs, epithets, derogatory or offensive statements, or jokes); physical acts (such as inappropriate physical contact or violence); and visual acts (such as displaying offensive posters or drawings or making derogatory gestures). 

Even if behavior does not rise to the level of actionable harassment or other unlawful conduct, many employers choose to prohibit and discipline abusive behaviors, such as bullying, for the reasons outlined above. 

Preventing Abusive Behavior

To assist your organization in preventing and responding to unlawful harassment, start by implementing an anti-harassment policy. In doing so, consider whether to also implement an anti-bullying policy in order to prohibit other behavior that is abusive but may not be illegal. Among other things, your anti-harassment policy (and an anti-bullying policy, if you decide to implement one) should:

• State that complaints of unlawful harassment and other prohibited behavior should be promptly reported to management;
• Identify more than one member of management to receive and investigate such complaints (so employees are not required to report to the wrongdoer);
• Advise employees that if they make complaints in good faith, or assist in an investigation, they will not be subjected to retaliation;
• State that the company will promptly investigate complaints, and will take appropriate corrective action if it determines unlawful or other prohibited conduct occurred; and
• Specify that supervisors and other employees who violate the policy are subject to discipline, up to and including termination.

 

If you implement an anti-harassment policy and take efforts to promptly correct unlawful behavior, it may allow your company, in certain circumstances, to minimize or avoid liability. In fact, if no adverse employment action has been taken, an employer’s liability for harassment often hinges on whether the employer adequately sought to prevent harassment from occurring, and whether it promptly and appropriately responded when it learned the conduct occurred.  

Restaurants and other employers should also bear in mind that harassment and other abusive behaviors can be imposed not only by coworkers and supervisors, but also by third parties, such as vendors or customers.  Accordingly, in addition to implementing a policy for your workforce, you should monitor the workplace for inappropriate behavior by third parties. It is important that you not take any actions that could be perceived as dissuading workers from complaining of harassment or other unlawful conduct by any party. 

To assist your managers and other employees in recognizing, reporting, and responding to these types of behaviors, once you implement an anti-harassment policy (and any anti-bullying or anti-abuse policy), consider providing separate training sessions for your management and non-management employees that explains your policy or policies and the consequences for any violations. 

Employers are well advised to maintain documents reflecting their efforts to prevent and combat illegal or abusive behavior, including requiring all employees to acknowledge, in writing, their receipt of any anti-harassment or anti-bullying policies, as well as their attendance at any training sessions.

Responding to Abusive Behavior

Even if you do your best to prevent harassment and bullying from occurring, at some point you may nevertheless receive a complaint or observe conduct you believe may constitute harassment or other inappropriate behavior.  It is important to note that as soon as you or your supervisors become aware of unlawful harassment, your duty as an employer to take prompt corrective action is triggered.

As a result, it is important to promptly investigate and take remedial action upon observing or receiving a complaint of harassment. You can start by having employees complete a written complaint form and requiring them to submit all details and evidence of the alleged wrongdoing, as well as the names of all individuals who witnessed or were involved in any incident. Then, interview the individuals involved, including the victim, alleged wrongdoer and any witnesses.  Ideally, there should be more than one company representative attending these interviews, so there is more than one witness and someone to take notes.  Instruct employees that they are expected to participate and cooperate in the company’s investigation, and must provide truthful information. Document the information received, while taking care not to pre-judge whether wrongdoing has occurred while the investigation is pending. 

At the conclusion of the investigation, determine whether unlawful harassment or other prohibited behavior has occurred.  If so, take immediate action to stop the behavior.  If you are unable to determine whether the alleged behavior occurred, consider taking additional protective measures, such as supplemental education, training and counseling.  Last, but certainly not least, remind all individuals involved in the investigation that retaliation is prohibited and request that such individuals notify you at once if they believe they are being subjected to retaliation, or any other unlawful or prohibited conduct. 

Ultimately, your goal is to have a productive and safe work environment where all employees are free from harassment and other degrading behaviors, such as bullying.  By following the steps above, and ensuring that you treat similar employees and circumstances in a similar and fair fashion, you can increase the likelihood of meeting that goal.  As always, you should consider retaining experienced employment counsel to assist you in determining your specific legal obligations with respect to harassment and bullying, and to help you prevent and respond to unlawful behavior. 

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