Transgender in the workplace

Workplace harassment takes on many forms, making it difficult to tell the difference between normal office banter and offensive or unlawful behavior. Most of us agree that we want our workplace to have a friendly and enjoyable environment. Often that includes lighthearted humor. When people spend a lot of time together, it’s not unusual for personal relationships to develop, allowing a more relaxed environment. This is just human nature. We need to be aware, however, that employees have different backgrounds, senses of humor, sensitivity, disabilities, etc. Good humor to one person may be perceived as offensive to another. Joking, teasing, nicknames, even displayed photos or religious items, can unintentionally offend a coworker and sometimes rise to the level of unlawful behavior.

As a business owner, you have the primary responsibility to set the tone for your organization and to make sure that managers and employees understand that your company prohibits harassment and will take action to stop it. So where is the line in the sand? How do you know when it has been crossed? Good judgment and awareness of your employees’ differences is fundamental. As an employer, you can take steps to encourage and promote a harassment-free environment by having (i) a written policy in your handbook prohibiting harassment, (ii) a commitment to communicating and following the policy, and, (iii) well-informed human resources personnel and quality legal counsel versed in employment law. In drafting a policy, keep in mind that it must comply with federal law and the laws of every state in which you do business.

In addition to formal policies and procedures, there are some practical steps you can take to encourage a harassment-free environment and protect the company from claims and lawsuits. To provide some assistance, here are some basic suggestions to consider:

Communicate your written policy and consider annual training, particularly for management and supervisors.
Lead by example. Of course, it is totally acceptable to make jokes, but you and management should exercise good judgment in your words and actions. Remember that unwelcome physical contact should always be avoided.
Have an open door policy. One of the most important factors in mitigating harassment issues is to make sure that all employees have an easy method for being heard. In addition to having the policy in your handbook, make sure that the work environment supports the policy. Having an open door policy that employees don’t feel comfortable using is like having no policy at all.
Take employee complaints seriously. Even if a complaint seems exaggerated or simply untrue, take the time to look into the circumstances before dismissing it. Depending on the complaint, you may need to investigate. An investigation can be as simple as talking to each person involved. Sometimes an employee just needs to be heard. For serious or widespread harassment issues, you may consider hiring an attorney to do a more formal and extensive investigation.
Address any inappropriate behavior. If you conclude that there is harassment, take measures to stop it and prevent it from escalating. Your actions should be consistent with the severity of the unwelcome behavior. Sometimes all it takes is a simple apology. More serious issues may call for disciplinary action. In either case, your actions can make the difference between an internal complaint and a full-blown lawsuit.
Remember that a hostile work environment is a form of harassment. Sometimes even non-work related activity can be unlawful. For example, an employee who regularly tells inappropriate jokes to a friend on the phone, offending coworkers within earshot. A bystander can be subject to harassment even if the behavior is not directed to the bystander. Also, keep in mind that the forwarding of inappropriate emails, or displaying offensive pictures on a computer screen, can cause a hostile work environment.
Importantly, do not retaliate against an employee who brings a complaint. Like harassment, retaliation can take many forms and can also be unintentional. For instance, you may be inclined to move a complainant’s workstation away from the alleged offender; however, the complainant could perceive the move as negative and claim retaliation. Similarly, changing shift times can be problematic.

Here are some frequently asked questions with respect to workplace harassment:

Under what provision of the law is workplace harassment made illegal? Harassment is technically a form of discrimination as defined under Title VII of the Federal Civil Rights Act of 1964, which prohibits discrimination (and harassment) in the workplace based on race, color, sex, religion, and national origin. Other federal laws prohibit discrimination based on age, disability, genetic information, and equal pay. Individual states and some municipalities have similar laws that make discrimination and harassment illegal and can be more expansive than the federal laws.
How do you handle the gray areas? It’s usually the borderline scenarios that create the most concern. Often the offending behavior is unintentional, but perceived by the complainant as harassment. In these situations, take the complaint seriously and look into the circumstances. Often a conversation with each person involved can effectively avoid a claim.
What industries are most susceptible to harassment claims? Harassment can happen in any work environment, but it appears to occur more frequently when individuals work closely with one another; for example, the restaurant industry is often cited as having the biggest problem with harassment. Similarly, warehouses, manufacturing floors, and construction sites can be particularly susceptible to harassment claims.
What should employees do if they feel harassed? All employees should be encouraged to first speak up if they feel offended or harassed. Often the “offender” is unaware that his/her behavior is unwelcome, and simply pointing it out directly to the person can stop the behavior. In circumstances where an employee feels uncomfortable addressing the situation directly with that person, he/she should be aware of the company’s open door policy and feel comfortable going to another manager or an HR person. All employees have the right to file a charge with the EEOC or corresponding state agency. Employees are required to exhaust these administrative remedies before filing a lawsuit in federal court.
Is there a difference between “manager-to-employee” harassment and “employee-to-employee” harassment? Manager-to-employee behavior might have a “quid pro quo” element to it, meaning an employee might perceive his or her employment is at risk. Employee-to-employee harassment usually creates a hostile work environment, rather than a fear of losing one’s job. Both situations are problematic and can be unlawful.
What are some examples of behaviors that could constitute harassment? We all know the obvious ones, but what about some of the more subtle examples?

Posters, drawings, pictures, screensavers, graffiti, or emails that reference a protected category like race, gender, age, religion, or disability.
Employees who witness consensual sexual behavior between coworkers, but perceive it as offensive; or employees within earshot of a coworker who regularly makes offensive jokes or remarks.
Comments about a person’s body or sexual activity or preference.
Transferring a person who makes a complaint.

Is there a difference between verbal and nonverbal harassment? No, harassment can take many forms. Physical nonverbal gestures and threatening behavior can be no less offensive than overt comments. Harassment is largely based on how it is perceived or would be perceived by a reasonable person in similar circumstances.
What about the accused? Harassment in the workplace has two sides. We often forget about the rights of the accused. Regardless, the allegations of harassment will be taken very seriously as both the rights of the accused and the accuser are at risk. Your anti-harassment policy should outline a response that includes an impartial review of the harassment claim outside of the supervisory chain of command, and it should ensure confidentiality to the extent possible.

For more information about ways you can help your business customer protect their organization against harassment and other employment related matters, please contact ABA Insurance Services at 866-483-3754 or email us at EPLI@ABAIS.COM.

Any discussion relating to policy language and/or coverage requirements is non-exhaustive and provided for informational purposes only. For details on coverage provided by your specific policy, please refer to your policy.