Just how far is too far in terms of employee harassment? Where does the line of indecency or rudeness end and liability for the employer start? Typically, teasing and occasional acts of verbal harassment have not been enough to move the needle.
But, a California Appeals Court has set a new standard by upholding a $500,000 award against the California Department of Corrections and Rehabilitation for a correctional officer at a prison who had claimed disability harassment after being teased and mocked about his speech impediment at least a dozen times over a period of two years.
The trial court had deemed the jury award too large, so it had ordered a new trial based solely on that issue, but the plaintiff appealed and the appeals court reversed the lower court’s order
The significance of the case for employers is that even teasing and sporadic verbal harassment can be enough to create a hostile work environment and, hence, liability.
The plaintiff had evidence of harassment by one employee who mocked the plaintiff’s stutter “five to 15 times” over more than two years. There was other, vague testimony that there was a “culture” at the prison of mocking the plaintiff’s stutter.
Also, the prison management had failed to take adequate steps to deal with the problem, such as separating the employees.
The jury’s verdict reflected a finding that the conduct was both severe and pervasive. While in the past it would not have been easy to establish legal liability based on the facts in this case, over the years, a cascade of legal precedents have made it easier to establish that there is a hostile work environment.
This ruling sets a new bar for what constitutes a hostile work environment. The best way for employers to not fall afoul of the law is to have a workplace anti-harassment policy in writing.
All of your staff should know and understand the policy and you should conduct training to ensure everyone understands what is considered harassment. But your training must be effective. To use the egregious action in this case, everyone knows that making fun of someone who stutters is wrong, especially in a workplace.
A strong training program should focus on the ramifications for perpetrators of harassing behavior, such as:
- Salary cuts,
- Unpaid leave, and
- Bad references if they are seeking new employment later.
Additionally, you should have a complaint mechanism that guarantees the complaining employee that they will not face disciplinary action for making a complaint against a co-worker or supervisors.
You need to ensure that you have buy-in from all of your management and that they and your human resources head take complaints seriously and investigate and enforce your in-house rules.
And if the harassment is serious enough and/or a harasser continues their behavior after being warned, management must be willing to take disciplinary action, including terminating the harasser’s employment if need be.
If you have any questions or would like to speak to a professional advisor, please contact ACBI Insurance at 203-259-7580.