Supplemental materials for LEAP 2025 session Proactive Prevention: Identifying and Addressing Workplace Harassment
Re: Employee Lawsuit Risks
You must occasionally talk tough to employees who underperform, act unruly or act in other ways that can hurt the organization. But how can you be forceful without unintentionally using insensitive speech that invites a harassment complaint or, even worse, a lawsuit?
It’s more important than ever for you to walk that fine line. Why? It’s not just a “politically correct” issue. Employee lawsuits relating to harassment and discrimination have risen dramatically in recent years. Allegations of sexual harassment, gender-related claims and race bias account for more than two-thirds of all complaints filed with the EEOC.
The law: Federal law (Title VII of the 1964 Civil Rights Act) prohibits harassment on the basis of an employee’s race, color, sex, religion, age, national origin or disability. (For details, see www.eeoc.gov.) Several states have also established their own anti-harassment laws.
Use the following five common-sense tips to draw a line between tough management and harassment:
1. Don’t criticize employees personally. Avoid statements such as “You can’t do anything right” and “You’re terrible.” That’s especially important if you don’t like an employee, and others suspect that’s the case. Repeatedly berating an employee can establish a pattern of verbal abuse.
If you’re dissatisfied with an employee’s performance, explain the reasons (using concrete examples), suggest ways for improvement, lay out a performance timeline and explain the consequences for not meeting those goals.
2. Avoid extreme rudeness. Examples: yelling an employee’s name across the room or down the hall to correct him or her; frequently telling an employee to “shut up.”
3. Don’t condescend. Avoid comments such as “A 12-year-old could do a better job.” Employees can claim that such comments contribute to a hostile and intimidating working environment.
4. Don’t discipline employees in front of co-workers or customers. In almost all cases, disciplinary actions should be kept strictly on a need-to-know basis. That typically means the employee, his or her supervisor, department head and HR manager. Never make an employee with performance problems into a public example.
In one recent case, a California jury awarded an employee a $10,000 judgment in an invasion of privacy case. The woman’s supervisor had announced at a staff meeting that he was planning to reprimand her; then he announced that fact to an even broader group via email.
5. Watch what you don’t say. Excluding someone from conversations, meetings or projects could be seen as a form of discrimination or harassment. Example: During meetings, a manager calls on every employee, except for one poor-performing woman, to discuss projects and ideas. She may claim the manager purposely humiliated her because of her gender.
Final tip: Weigh your comments to employees against this test: Would you want somebody else to say the same thing to your son, daughter, sibling or parent? Would you say the same thing to a friend in front of that person’s spouse?
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