Responding to harassment in workplace
At the Barbados Employers’ Confederation (BEC) we regularly receive queries on various workplace issues. One of our frequent queries was highlighted in last week’s column, where my colleague addressed the issue of substance abuse and testing within the workplace.
Another highlighted area of concern to employers is how to address harassment. The issue of harassment within the workplace is surrounded by concerns related to confidentiality, trust and reputation; this means that employers, while being proactive in dealing with such issues, must also be very careful in how they handle such issues when presented.
What is harassment? Legislation in the United States defines harassment as unwelcome conduct that is based on race, colour, religion, gender, national origin, age, disability or genetic information.
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.
Examples of offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.
Harassment can occur in a variety of circumstances, including, but not limited to, the following:
The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
The above description shows that harassment can occur in various forms. Additionally, an action does not have to be repetitive to be considered harassment; a single incident, once serious enough in nature, can be deemed as harassment.
Often times emphasis is placed on sexual harassment, to this end, Barbados has a draft Sexual Harassment Bill which is at the consultative phase. The Protection Against Sexual Harassment Bill defines sexual harassment as any unwelcome physical, verbal or non-verbal conduct, whether of a sexual nature or based on sex, which affects the human dignity of the recipient. It includes a comment, gesture, contact or display of a graphic picture.
From the perspective of a co-worker, employees need to be cognizant of their behaviour within the workplace, as seemly innocuous actions can be deemed as harassment. Actions such as display of calendars with scantily clad people or conversations of a sexual nature with other coworkers may be considered as harassment. If it has the potential to interfere with work performance and/or create an uncomfortable environment then it should be avoided or stopped.
Many employers have instituted policies regarding workplace relationships in an effort to alleviate the potential for a claim of sexual harassment. While some employees may see such policies as restrictive, consideration must be given to the need to safeguard employees and preserve individual, as well as company reputations.
Regardless of the form of harassment, once suspected, the employer is obligated to address the situation with expediency. However, unfortunately, in such situations many employers are hesitant to act because of lack of knowledge and experience in handling such matters or intimidation by the delicate nature of the matter.
When faced with an accusation of harassment, employers should follow established disciplinary rules and procedures, whether included in the company policies and procedures or that contained in the Employment Rights Act. However, due to the sensitive nature of harassment issues, there may be the need to restrict the number of persons involved.
When following disciplinary procedures, it is critical to ensure that the principles of natural justice are adhered to, ensure that:
1.The matter is thoroughly investigated
2. The accused is informed of any charge brought against them
3. The accused is allowed to respond
4. Bias is removed when deciding upon judgement.
The BEC’s recently published Red Book: A Guide To Employment Relation in Barbados provides a sample sexual harassment policy which is a useful guideline for all employers in creating and maintaining a harassment free workplace.