Q1. What is harassment?
Many people hear about harassment without knowing exactly what it is. When you hear about harassment I’m sure the first thing that comes to your mind is sexual harassment but there is more to harassment than sexual. Harassment is an unwelcomed behavior to another individual and it could be sexual, racial, age, disability, religious beliefs or national origin. Harassment is a form of discrimination though sexual harassment is the most common form of this kind of discrimination. Sexual harassment is not always against the opposite sex because there is same-sex harassment exhibited by homosexual individuals. This is motivated by sexual desire for people of the same sex.
Q2. How does employer liability for harassment by a co-worker or third party compare or differ with the company’s liability for harassment by supervisors, managers or other top officials?
The main issue here is the level of liability for the employer when the problem of harassment is caused by a top company official like the supervisors, managers, CEO Vs. if the harassment is perpetrated by a co-worker or a third party like vendors. We must understand that companies take the problem of harassment very serious because it can cost them a lot from bad reputation to millions of dollars in liability. In the process of maintaining a positive social responsibility having policies on how to manage the problems of harassment is a very good thing for corporations. The grounds for attributing liability to employers for harassment differ depending on whether the harassment results in a tangible employment action and the organizational position of the harasser (Walsh, J. David, 2012).
When co-workers and third parties are the harassers they will create a hostile work environment for the victims who do not welcome the harassment. But if the receiver of the harassment appreciates it then we’re good because there is no problem. It is sad to know that there are instances where an employee may welcome harassment especially if the harasser is a top company officer and the victim is getting some favor from it like promotion or preferential treatment. A co-worker does not have the same authority as a supervisor/manager to create or enforce a tangible employment action that will adversely affect another employee. Therefore the employer is only liable for the harassment caused by a co-worker or third party if the victim can show that a) the employer knew or should have known about the occurrence of the harassment; and 2) the employer also failed to take prompt and effective steps to stop the harassment.
If the harasser is a top company official like Supervisors, Managers, CEO or administrator then it’s a bigger problem for a company. This is because top company officers have the ability to make an employee suffer a severe tangible employment action like loss of employment, reduced salary or loss of promotion. When this happens and the victim sues and proves it the employer is liable with no excuse to avoid penalties. The employer can only avoid liability if no tangible employment action was suffered by the victim and the employer can prove two things; a) the employer exercised reasonable care to prevent and correct any harassment promptly and b) the harassed victim failed to take advantage of any corrective or preventive opportunities that the employer provided through their company policies and procedures against harassment.
It is very important that employers maintain and publish a formal harassment reporting policy and procedures and strictly follow the policy as written.
Walsh, J. David, Employment Law for Human Resource Practice, 4th ed. 2012