There are a wide range of laws that cover how you as an employer treat your employees at every step in the employment process: from hiring, firing, promotions, harassment, training, wages, and benefits. And as an employer, you can be held vicariously liable for the actions of your employees, meaning if you “allow” or don’t prevent harassment or discrimination in your workplace, you could find yourself and your business or nonprofit named in a discrimination lawsuit. By putting the right anti-harassment and non-discrimination policy in place (and following it), you will be able to show that you acted appropriately to prevent discrimination and respond to workplace harassment.
And these aren’t just issues for “big” business. Yes, accusations at larger companies make headline news, but for every case you read about against a large corporation, there are several less reported cases against small businesses and non-profits. Not only do these cases take precious time away from your business (not to mention the emotional toll litigation can take on you personally), but they are also incredibly expensive to defend. The problem seems especially prevalent in family-owned businesses where non-family members often feel they are being treated differently and unfairly or that they cannot speak up against one of the family members who is engaging in unwanted behavior.
No Small Business is "Too Small"
A list of the relevant laws is included at the end of this post, along with which laws apply to employers of what size. However, rather than trying to piece the puzzle together, the better approach is to keep it simple. Assume the law applies the minute you decide to become an employer. Even if you are under the threshold number of employees, you would still be risking your business’ reputation if you were accused of a discriminatory practice. With social media, word gets around quickly.
Even if you manage to avoid an expensive lawsuit, can you really afford the reputation risk?
Just what is harassment?
Your employment policies should include an anti-harassment / non-discrimination policy that prohibits harassment and discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, disability, age, and ancestry. Depending on how many employees you have, you may also include genetic information (including family health history) in this list. The Equal Employment Opportunity Commission (“EEOC”) defines harassment as unwelcome conduct that is based on one of these protected characteristics. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Contrary to popular belief, harassment does not require a supervisory relationship. Accusations can just as easily be brought against fellow co-workers or even non-employees. As an employer, you are responsible for the behavior of anyone that you have control over, including independent contractors and customers that you allow onto the premises. Similarly, the victim is not just the person who was targeted, but anyone affected by the offensive conduct. For example, an employee who witnesses a co-worker repeatedly being harassed by your top paying client might argue that they were too intimidated to speak up for fear of losing their job or offending the client and that this constituted a hostile work environment. (Of course, if the co-worker does speak up and later loses their job or gets demoted, they would almost certainly have a legal claim.)
A good policy will not only explain what is considered harassment, but it will also explain how employees can report such behavior. What is considered inappropriate may look different at a smaller, more congenial organization than a large, stuffy corporation, but you still need to draw a firm line. Examples include offensive jokes, slurs, epithets, name calling, physical assaults or threats, intimidation, ridicule or mockery, insults, offensive objects or pictures, and interfering with work performance. While these examples may seem obvious, if your business or non-profit is ever accused, we want to be able to show that you reasonably tried to prevent harassing behavior.
It’s not enough to say that there is a mysterious procedure in place. Your employees need to feel comfortable that they know what the procedure is, that it’s well thought out, and that you will actually follow it. Your procedures should include a prompt, thorough and impartial investigation of any complaints. It’s harder for an employee to later claim that you permitted unlawful harassment to go on if they don’t take advantage of the procedures you put in place to prevent and correct such behavior.
Often, problems arise in small businesses simply because employees have never been told how their organization will deal with the issue. Silence often equals complicity.
Consider how will you protect the confidentiality of employee’s who report harassment or cooperate in an employment investigation. Not only do you want to handle these situations with care, but you need to make it clear to your employees that they will not be punished for reporting harassment or cooperating in an investigation.
To be clear, retaliating against employees for reporting harassment or cooperating with an investigation is illegal.
Once there has been an investigation, how will your business or nonprofit respond? Be prepared to implement appropriate corrective actions to make sure that the complained of activities don’t happen again. If you don’t promptly correct the behavior, then you open yourself to the types of lawsuits we’re trying to prevent.
If you need help drafting or updating your employment policies: