Test your knowledge about which behaviors warrant investigation by HR—and possibly the EEOC.
Sexual harassment is making the news a lot these days, but most of the complaints that HR hears about day-to-day aren’t quite as clear-cut—or egregious—as the reports against former Fox CEO Roger Ailes, Kevin Spacey and Charlie Rose.
The classic example of harassment, which is what Ailes allegedly engaged in, involves a supervisor tying an employee’s advancement opportunities to requests for sex. While such “quid pro quo” cases make the most headlines, they are far less common than so-called “hostile environment” harassment, wherein an employee is made to feel uncomfortable by the discriminatory behavior of another co-worker, client or customer.
How well do you understand which behaviors warrant your attention? We developed a brief quiz in collaboration with SHRM’s HR Knowledge Center Advisor Nora Harsha, who fields phone calls daily from HR professionals looking for answers on this and other important workplace issues.
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6 True or False Questions
Q: HR doesn’t need to investigate if an employee complains that a co-worker texted offensive photos to their personal device outside of work hours.
A: FALSE. Companies can be held accountable for their workers’ behavior regardless of where and when the potential harassment occurred, and whether the offensive content appeared on an employee’s own phone or tablet.
HR professionals often question whether they can ask to review devices that aren’t company property, Harsha said, particularly if the behavior in question happened offsite. The answer is yes, if HR has reason to believe one employee acted inappropriately toward another. A review of the texts should be part of your formal investigation.
However, while a victim is likely willing to share, be mindful that there isn’t any recourse if an employee refuses to produce texts. In that case, move forward by collecting a statement from all parties involved.
Q: A hospital can be held liable for the inappropriate behavior of its patients.
A: TRUE. The fact that sexual harassment can be perpetrated by a company’s clients, customers, or any other segment of the public with whom they interact often gets overlooked, Harsha said. For example, suppose a patient is being suggestive to the nurse serving his floor in a hospital, and the healthcare worker subsequently reports the behavior to her supervisor. “The hospital now has an obligation to protect this person from sexual harassment,” Harsha said.
This can be challenging for HR because hospitals can’t opt not to serve patients and they often can’t move them. At the same time, removing the nurse from the floor could conceivably be regarded as retaliation. “That becomes a very hard HR issue—and that’s when you have to talk to legal counsel,” she said.
Q: If an employee willingly extended a friend request to his or her supervisor or co-worker on social media and becomes uncomfortable with the other person becoming too familiar, the worker shouldn’t report it to HR.
A: FALSE. “We get a lot of phone calls on that,” Harsha said. A lot of practitioners are confused, asking her, “OK, are we supposed to do something? They let them into their social media.”
Ultimately, that’s irrelevant, she says. “The guidance now is to make sure your policies are very clear,” Harsha said. If the behavior is in violation of a company’s harassment policy—or the law—“it’s still the employer’s responsibility to address it to protect their employees from harassment.”
Q: HR may need to tell an individual if his or her physical gestures, such as tight hugging and shoulder massages, are making others uncomfortable.
A: TRUE. “This falls under whether or not a ‘reasonable person’ finds that [behavior] acceptable in the workplace,” Harsha said. “It’s about having spatial awareness.”
While some employees would opt to tell a co-worker directly if they don’t like the way someone touches them, not everyone feels comfortable doing that—and thus may prefer to bring their concern to HR. “It’s HR’s job to let [the offender] know the behavior is unwelcome,” Harsha said. “There’s a difference between giving a hug to say hello and rubbing someone’s shoulders that is unwelcome.”
Q: If an employee repeatedly makes sexual jokes near their cubicle, and no one involved in the conversation complains, the company bears no responsibility.
A: FALSE. Such behavior might be OK at a private happy hour if no one there has a problem with it, Harsha said. However, it’s totally different if it occurs in an area where everyone can hear it—like a lunchroom or open workspace.
If this happens repeatedly and the jokester’s manager failed to respond to other workers’ complaints, the company could become liable for a hostile work environment. That’s what happens “if a supervisor is aware and does nothing,” Harsha said.
Q: A single complaint doesn’t warrant an investigation by HR.
A: FALSE. Although a behavior isn’t legally considered harassment unless it is shown to be “pervasive,” HR must take every complaint seriously—and consider the likelihood that the initial grievance could be the tip of the iceberg. “The EEOC will make the decision about whether it’s pervasive, but we can’t wait until it’s pervasive [to take action],” Harsha said.
Proceed by conducting a thorough investigation. Ask the person who complained to share the details about what happened and who may be aware of the incident. Then interview all the witnesses. Once you’ve gathered evidence, it’s appropriate to get the accused person’s side of the story.
You can begin with “there’s been reports of [describe inappropriate conduct]. Can you tell me what happened?” After collecting the accused person’s statement, HR can disclose the evidence. This is particularly useful if the person has denied the conduct. Make sure to consider all the facts and apply appropriate consequences.
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