Page 34 - Network Magazine Spring 2019
P. 34

      What is Workplace Harassment?
There is a lot of misunderstanding as to what “workplace harassment” is. Specifically, we need to ask, what illegal workplace harassment is. The reality is that there is a lot of harassment in the workplace that is perfectly legal. Stated otherwise: In “at will” states such as Pennsylvania you can harass an employee for no reason or any reason except an illegal reason. What is illegal harassment, therefore?
Harassment in the workplace is sometimes called "a hostile work environment" and is properly character- ized as a form of discrimination. It is this "discrimination" component which differentiates illegal harassment from harassment which is not covered by the law. Since il- legal harassment or hostile work environment is linked to discrimination, it must, therefore, relate to a federal or state law making the discrimination at issue illegal. To discriminate means to treat unequally- but if I harass or even fire my secretary "unequally" and unfairly because she is a Cowboys fan and the other secretaries are Eagles fans, this type of un- equal treatment is not actionable. What are the laws therefore upon which a harassment claim may be based? The main ones are the Civil Rights Act of
1964 and Civil Rights Act of 1991 (Title VII), which prohibits employment discrimination based on race, color, sex, religion and national origin; The ADEA, age discrimination act; and the ADA, which prohib- its disability discrimination. Recently "sex" has been interpreted to include sexual preference and sexual orientation as well. In Pennsylvania, the PHRA mir- rors the above federal protections in many ways.
What conduct constitutes harassment? Unlawful harass- ment based on the above laws is: a) offensive and unwel- come conduct; which is b) severe OR pervasive. In addi- tion, retaliation for a person complaining, filing a Charge, reporting or participating in an investigation of harassment under the above laws, is prohibited. “Severe” can be one very serious incident, and “pervasive” can be a series of continuous less severe insults, threats, slurs, offensive statements and the like. No single factor will determine whether there is unlawful harassment or hostile work en- vironment; however, the courts and the EEOC regulations have focused on whether the harassment “unreasonably interferes with the employees’ work performance." Harass- ment itself is a harm punishable by the law without the need of economic damage such as from a demotion or firing.
When is an employer liable? The short answer is that an employer is most at risk for the acts of its supervisors. An employer is liable for the authorized acts of its supervis- ing employees. This, however, provides an easy escape for employers who simply state that "harassment and discrim- ination are never authorized." Accordingly, the Supreme Court in the 1998 cases of Farragher and Ellerth, stated that an employer is strictly liable for supervisor’s harass- ment if the harassment causes termination, failure to pro- mote or hire or loss of wages-what is called a “tangible em- ployment action." For harassment, by non-supervisors, the employer is liable if it knew or should have known about the harassment and failed to take prompt and corrective remedial action. A defense for the employer is to show that the employee failed to take advantage of preventive or corrective opportunities provided by the employer.
  For over 25 years Attorney Kounoupis has represented employees and sued most of the Fortune 500 corporations, insurance companies, as well as federal, state and county governments. If your top managers and executives have not yet secretly consulted with him, they prob- ably will in the future.
What can employers do to prevent such claims? Employ- ers can: 1. Prevent harassment by having appropriate and enforced policies and well trained and sensitive HR staff. Training and education of employees are critical. 2. Em- ployers can conduct a proper and effective investigation of the allegations of harassment. The investigation must be thorough, non-retaliatory, prompt, effective and impartial.
To prevent illegal harassment there needs to be a clear understanding of what it is, how it is proven and the cir- cumstances under which employers may be held liable. Whether an employer or employee, this area of the law is very complex and therefore consultation with experi- enced HR counsel at the earliest opportunity is critical.

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