Becoming a manager or supervisor creates certain legal duties, including the duty to stop and correct any workplace harassment when being told about it.
Too often, those in management fail to recognize their need to stop harassment and/or fail to follow the proper reporting obligations that exist in organizations.
There are six statements that employees may make that could lead a manager to believe, wrongly, that her or his duty to report doesn’t exist.
• “I need you to keep this confidential” or “I’m coming to you in confidence:” The No. 1 reason managers fail to report complaints of harassment occurs when an employee comes to the manager asking for confidentiality.
Many times, employees just want the manager to know that something is happening, but doesn’t want the manager to tell anyone or do anything about it.
The minute that someone tells this to the manager, the company may be obligated to write a check for every instance of harassment that occurs thereafter if the company fails to address it.
And, what good does it do for a manager to know something and do nothing? It does no good at all.
• “It’s not a big deal:” This statement might be true, but a workplace investigation will uncover that.
If it is on the employee’s mind enough to bring it up, the manager needs to immediately take action to determine what has happened.
• “I can handle this by myself” or “Let me talk to her instead:” In a perfect situation, employees work in a collaborative way to resolve their conflicts between themselves.
When it comes to harassment, however, even if the employee plans to bring it to the offender’s attention, the company cannot count on that conversation to actually occur or for the conduct to stop. The company still has a duty to get involved.
• “The employee didn’t want to file a formal complaint:” Under federal employment laws, the duty to report exists when the company is on “notice,” not necessary when a complaint is filed.
Notice includes the manager seeing it, hearing about it or suspecting it.
The words “formal complaint” should be removed from the manager’s vernacular. Once the manager is on notice of behavior that could constitute harassment, the duty to act exists.
No “formal complaint” or other obligation exists on the part of the employee.
• “Give me a few days to think about this:” Timing matters in harassment complaints. The company has a duty to immediately address allegations of workplace harassment and, at a minimum, initiate an investigation right away.
Once the company is on notice, there is nothing more for the employee to “think about” because the matter is now in the hands of the organization to address.
• “I am coming to you as a friend, not a manager:” The blurred line between friendship and management needs to be clear with respect to harassment.
If your family and your best friend from work’s family are at the beach together and your best friend from work says to you while at the beach, “you know Sally told me at work the other day that Fred sent her an inappropriate picture and she was so mad at him.”
This conversation is not personal.
You now have notice of a workplace situation that requires an immediate investigation.
Even though you are friends, you are always a manager and you can’t know something between 9 and 5 and unknow something in the evening. Notice is notice.
For managers in particular, employers also must show that it took steps to prevent and stop harassment.
For these reasons, employers have an affirmative obligation to train managers on their duty to not engage in harassment – and what that looks like – as well as their duty to report.