By way of legal background, in order for harassment to be unlawful under federal law, among other requirements the offensive conduct issue must be (a) based on a protected group and (b) severe or pervasive.[i] With this legal background, this article focuses on two of the more common mistakes employers make with regard to corrective action relative to harassment complaints.
1.Using Legal Labels When Taking Corrective Action
The first mistake is to label the conduct giving rise to the corrective action as unlawful.
Let’s assume, for example, an employee tells a sexist ‘joke.’ The employer should take corrective action, even though the ‘joke,’ in and of itself, most probably would not be sufficiently severe or pervasive to constitute unlawful harassment under federal law.[ii]
Using the legal label where it does not apply may result in the employee who engaged in the inappropriate conduct being less receptive to the corrective action. He or she may fight the legal label, because of the opprobrium that goes with it, as opposed to focusing on what he or she did wrong. Indeed, using the legal label “unlawful” may result in a defamation claim by the employee who undeniably engaged in bad conduct but not so bad as to be unlawful.
But what if the conduct is sufficiently severe or pervasive so that it may be unlawful. Let’s assume, for example, an employee told multiple sexist ‘jokes’ and shared AI images that were sexual in nature. Any problem with using the legal label here?
Even here, or especially here, employers should avoid the legal label and here’s why. Let’s assume the employee files a claim alleging that the corrective action was inadequate (e.g., less than discharge) or that the employer is strictly liable for the conduct (e.g., the wrongdoer is a supervisor.) In litigation, the employee may argue that the legal label in the context of corrective action constitutes an “admission” which establishes liability.
Of course, the employer can argue to the contrary and ask a judge to charge the jury that the label does not constitute an admission. Even if the judge agrees to the charge, it is hard to imagine a jury would disregard entirely the label the employer affixed to the conduct.
For the preceding reasons, employers should avoid putting a legal label on the conduct which is the object of its corrective action. Instead, the conduct should be referred to as harassing, inappropriate and/or offensive.
Indeed, in the employer’s policy and management training, the employer should make clear that harassing conduct does not need to be unlawful to violate the Company’s policy. This sets the stage for employers to take corrective action without using a label to describe the wrong.
2.Not Taking Corrective Action
The second mistake is not taking corrective action because the offensive conduct has no clear nexus to sex, race or any other protected characteristic.
Let’s assume that an employee alleges that her manager screamed at her because she is Black. Yelling at an employee is undeniably offensive. However, to be unlawful, it also must be based on a protected characteristic, such as race.
Let’s assume the investigator concludes that the manager did, in fact, yell at the complainant. But the investigator also concludes the complaint is “unfounded” because the manager yells at everyone so that the yelling at the Black employee was not because of her race. Why is this problematic? Let me count the ways.
As a legal matter, the equal opportunity abuser defense it a risky defense to raise. If the cases ends up in court, expect the plaintiff to argue that, even though the non-Black “comparators” were yelled at too, the nature of the yelling (for example, frequency) was not equal. How do you think a jury would respond?
And, even if the employer were to win, the win would be pyrrhic. Hardly great for recruiting when AI shares your reputation as being a place where everyone can be abused equally.
Further, not taking corrective action with regard to abusive conduct makes it more likely that a legal challenge will happen in the first instance. The wrong through the eyes of the complaining employee morphs from her manager screaming at her to the company’s sanctioning her manager’s screaming at her.
Finally, even if there is not claim, the abusive conduct contributes to the creation of a toxic culture. A toxic culture also provides fertile soil for harassing conduct of a more directly racial, sexual, etc. nature.
So corrective action should be taken but the employer should not make the case for the potential plaintiff. In this example, the employer could conclude that, even though there is no evidence that the complainant was yelled at because of her race, the yelling was still inappropriate and take corrective action.
And, again, the employer’s policy and management training should set the stage for corrective action in this scenario. They should not only make clear that hostility directed at someone because of their sex, race, etc. may constitute harassing conduct, even if there is nothing sexual, racial, etc. about the hostile conduct. They also should make clear that abusive conduct may result in corrective action, even if such unacceptable conduct is not based on race, sex or another protected characteristic.
Conclusion
When these two scenarios are considered together, there are two take aways for employers:
First, employers should take corrective action even if the inappropriate conduct most probably is not unlawful.
Second, in taking corrective action, employers should avoid legal labels, even if the inappropriate conduct very well may be unlawful.
Employees must do what’s right by and for their employees but without using legal labels that may be used against them.
[i] Under some state and local laws, a standard easier to meet than ‘severe or pervasive’ may apply.
[ii] One sexist “joke” probably would not be enough to constitute unlawful harassment, even if a more lax standard applied.
This article should not be construed as legal advice or as pertaining to specific factual situations.
