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David Druzynski

David Druzynski Chief People Officer

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What Defines Workplace Harassment?

When someone talks about workplace harassment, many of us automatically think of sexual harassment, especially in the wake of the #MeToo movement. While sexual harassment is a very serious concern and in need of continued attention, it's important that you don't focus all of your anti-harassment efforts on sexual harassment, and inadvertently overlook other types of harassment in your dealership.

In fact, the number of harassment claims based on sex ranks fourth—behind race, disabilities and retaliation. By far the most prevalent form of harassment is retaliation, which occurs when someone—usually a manager—retaliates against an employee who has filed a complaint or discrimination charge, participated in an investigation or lawsuit, or who has opposed an employment practice they believe discriminates against individuals.

 

Harassment of any type is intolerable, and for dealers it's critical to not only build strong policies, but to enforce them and hold both employees and managers accountable. A culture of tolerance must be clearly defined and rigorously defended.

 

With that said, what exactly is harassment?

 

Harassment is defined as unwelcome conduct based on race, color, religion, sex (including pregnancy), national origin, age, disability or other genetic information.

 

Offensive conduct may include, but is not limited to offensive jokes, slurs, name calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures and anything that interferes with work performance. Practices like hazing new salespeople or making race- or sex-based jokes can easily fall into this category.

 

Offensive conduct does not include petty slights, annoying behavior or even the occasional isolated incident, unless it's extremely serious. The key phrase in determining whether a behavior is harassment is understanding how the conduct would impact a "reasonable person."

 

Some employees are hyper-sensitive and as such, their accusations may not be justified. After all, it's still not against the law to be a jerk, as long as that's your consistent behavior and you're a jerk to everyone. I wouldn't recommend that you promote such behavior, but from a purely legal standpoint, it would pass.

 

A harasser does not have to be the victim's supervisor; it can be a supervisor in another area, a co-worker or even a customer. The victim doesn't have to be the person who is being harassed; it can be any observer who is offended by behavior that they witness.

 

The most important thing to remember is that the acceptable behaviors in your dealership are not defined by the policies in your handbook. They are defined by the behaviors that you choose to tolerate every day.

 

In the event of a lawsuit, what's written in your handbook will not protect you if the policies are not enforced and senior management turns a blind eye to what's going on in the dealership.

 

Preventing Harassment

 

Preventing harassment takes a coordinated effort by principals and senior management. It's not something that can be accomplished by updating policies in a handbook, and showing employees generic training videos.

 

To prevent workplace harassment, you must continually communicate your core values and operating standards to all employees. During onboarding, be sure to train employees on your workplace anti-harassment policies. This is something that many dealers don't do, but absolutely should.

 

Preventing workplace harassment also means that you must be willing to hold all offenders accountable, even if they are your best performers, family members or friends.

 

Provide separate and more intensive training for managers so they know what their responsibilities are when an employee comes forward, and also what constitutes retaliation.

 

It's also important to provide multiple avenues for victims to report harassment. If your policy states that all complaints should be directed to your manager, but your manager is the one doing the harassing, your policy is ineffective. Give employees several options other than their direct supervisor, and if the victim chooses another, ensure that the supervisor does not retaliate against the employee.

 

When it comes to harassment, you don’t need a formal complaint. If you become aware of potentially harassing behavior, it's best to immediately investigate it. If a lawsuit occurs, your best defense is to prove that you exercised reasonable care to prevent and correct any harassing behavior; and that the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.

 

These days, ignoring the problem, saying things like "Don’t let that offend you, that's just Harvey being Harvey," or sticking your head in the sand is not an option.

 

On the other hand, you don’t want to overreact to an accusation. If someone is accused, investigate immediately but don't jump to conclusions about what happened or fire the accused on the spot.

 

Many companies have gone so far as to implement zero-tolerance policies in the wake of the #MeToo movement that make it clear that you will be terminated due to a single incident of harassing behavior. Often times, victims of harassment just want the behavior to stop, they don’t necessarily want someone to lose their job over a single isolated incident. As a result, strong zero-tolerance policies can actually discourage victims from filing a complaint.

 

As a business owner, you have a legal responsibility to ensure your dealership is free from harassment every day. So, don't just update your handbook policy and think you're covered; stay vigilant and monitor your employees' and managers' behavior every day.

Bart Wilson

Dave, if zero tolerance policies can backfire, what should be the proper response?  Are we talking a 3 strike rule?

David Druzynski

The punishment should fit the crime. If an otherwise stellar employee had a momentary lapse in judgement and told a joke that offended someone, they shouldn't lose their job over it, as a zero-tolerance policy may require. In a situation like this, affording someone three strikes is proper.

In a situation where one employees sexually assaults another, skipping right to a termination is best. 

In my opinion, the best policy is to outline what a typical disciplinary sequence MAY look look (i.e. - verbal warning, written warning, termination), but state that management, in its sole discretion, reserves the right to determine the steps that are appropriate in a given situation, up to an including, termination of employment. Often times employers will lock themselves into situations not because they are forced to by law, but because the policy that they themselves developed required them to do so. A labor and employment attorney can help you draft a strong policy that gives you the flexibility you need.  

Bart Wilson

Thanks!

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