The scenario is all too common. An employee is subjected to an offensive, intimidating or hostile work environment due to the actions by another employee or third party in the workplace. She fears retaliation if she reports it. But the employee wants to tell someone.
The employee drums up the courage to meet with her manager and shares what is happening. The manager asks her if she wants to file a formal complaint and go to HR. The employee responds that she is not ready to do that. She asks the manager to keep the conversation confidential. The manager agrees.
The employee leaves. The manager honors the employee’s request to keep the conversation confidential. And the harassment continues.
Everything about this scenario is wrong. Managers must be trained on how to respond to these situations.
According to federal employment laws, employers are legally liable for the harassment of co-workers and third parties upon being made aware of the behaviors if they fail to take appropriate remedial action to stop them.
If a manager is made aware of conduct that could amount to harassment, the manager cannot ignore it.
Employees approach managers with many statements that might lead a manager to think he or she should not report it. These are some common statements made to managers that could lead a manager to wrongly ignore the situation, including:
“I need you to keep this confidential.”
“It’s not a big deal.”
“I can handle this by myself.”
“I don’t want to file a formal complaint.”
“I don’t want to go to HR.”
“Give me a few days to think about this.”
“Let me talk to him instead.”
“I am coming to you as a friend, not a manager.”
None of these statements justifies a manager ignoring a situation.
In response to a concern from an employee, a manager should say only the following:
“I’ll take care of this.”
And then the manager must take care of it by contacting human resources to conduct an investigation or, if the organization is small and does not have a trained human resources professional, the organization should either contact a third-party expert to conduct an investigation or conduct one itself. If the investigation determines that conduct has occurred that violates the organization’s policies or the law, the organization must take immediate remedial action to stop the misconduct – to include discipline, termination and other sanctions.
In most cases, the offending employee will need to be terminated to avoid the risk that the employee might offend again.
Too many managers wrongly think that an employee must make a “formal complaint” before action can be taken. However, it is notice to a manager – any manager not just the employee’s manager – that prompts the obligation to action. The law does not recognize only a complaint-based system.
If a manager overhears an allegation of harassment, sees it, suspects it, finds out about it or if an employee tells a manager, complains to a manager or brings it up to a manager, the manager must take action.
An employee has no duty to tell the person engaging in the misconduct to stop or that the conduct is offensive before the behavior can be considered harassment. Organizations need to have multiple avenues for employees to complain of harassment, and this should not have as prerequisite that the employee first speak with the offending employee.
Employers must train managers on the need for proper reporting and resolving harassment allegations. Too often managers ignore or even participate in the conduct, or retaliate against employees who bring issues forward.
Employees who raise concerns of harassment or discrimination should not suffer retaliation as a result of reporting harassment or participating in an investigation.