Advice for Harassment Cases
At a recent conference a well-known Chicago arbitrator gave advice on handling sexual harassment cases. Here are four excerpts from the lecture.
1. You don’t need a victim.
In a Title VII case in the courts, there needs to be a victim. But this is not required for an employer who wishes to issue discipline.
You have an employee who is making sexual comments to a bunch of people at work. Some of them banter back with him. Some say nothing at all. None of them complain to management. Can management still discipline the employee? Yes, without question.
Remember the old days? Women were hired into several all-male workplaces. They were offended by the comments but they didn’t want to speak up or disrupt the harmony of the workplace. There were many men who were offended and did not want to speak up.
The fact that no one complained is of no consequence. Once management learns of the conduct, management can act and discipline for just cause. You just need a rule that encompasses the conduct.
2. You don’t have to discharge everyone who engages in harassment.
Progressive discipline still applies. The Supreme Court has already ruled that discharge is not required in every harassment case. Your policy may require immediate discharge, but unless the union agrees with that in the CBA, the principle of just cause and progressive discipline is the applicable standard.
3. More training is needed on “Joke” Harassment via the internet.
I had a case where an employee switched departments. In his new department, he would send out jokes that ranged from mildly offensive to outrageous. He used gender, race and ethnicity in his jokes. Some were cartoons, but they were all jokes. Some of the recipients would write back. Finally, someone took notice and HR gave him a 5-day suspension.
I wondered why the union arbitrated this case. It’s a 5-day suspension. My advice to both sides: there needs to be more training, especially in regard to the internet and emailing of so-called jokes.
4. Audience Question: Can we prohibit all discussion of a sexual nature in the workplace?
So, you want to ban all discussion about sex? Not sure how you can enforce that.
It also sounds excessive. You can have many discussions about race or sex that are not objectionable. The question in law and the workplace is: Where do you draw the line? You draw the line when the conduct or statements are derogatory, discriminatory or offensive.
It’s an interesting question. And I understand why an employer wants to err on the side of caution, but such a policy goes too far. The policy has to be reasonable on paper and how it’s enforced.
(Labor Arbitration Institute
For 25 years, the Labor Arbitration Institute has been providing labor, management and their attorneys relevant and thought-provoking education in labor law and labor arbitration. https://www.laborarb.com/)