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How An Employee Becomes A Plaintiff: Preventing Workplace Harassment Suits

Harassment in the workplace makes employees unproductive and leads to costly and disruptive lawsuits. Preventing harassment and responding appropriately when it occurs is not only the right thing to do – it makes good business sense.

Most employers understand the basics of unlawful harassment, and strive to address it appropriately. However, employees define harassment much more broadly than the law does. When an employee is unhappy about how he or she is treated by a supervisor or a co-worker, the employee expects the employer to listen to the complaint and resolve the problem. The employee is not thinking about whether or not the harassment is prohibited by the law.

When an employer disregards a harassment complaint because it seems clear that no illegal conduct has occurred, the employee feels victimized and becomes more likely to seek out an attorney. Conduct that seemed lawful at the time of the complaint looks very different once spun by a plaintiff’s lawyer. The employer’s lack of responsiveness to the complaint then strengthens the employee’s claim and in the worst case, starts to look retaliatory. By understanding “harassment” through the employee’s eyes, and implementing these best practices, employers will better protect themselves and their workforce.

(1) Take complaints about co-worker “skirmishes” seriously. Co-worker conflict that seems trivial and childish to a supervisor or human resource professional often feels intimidating and hostile to the employee involved. Employees perceive “meanness” by co-workers as harassment, and expect the employer to intervene. They do not care if the bad actor is an “equal opportunity offender.”

(2) Meet with the concerned employee. Don’t ignore the employee’s complaint about unfair treatment or workplace conflict, even where it seems clear that no unlawful conduct occurred. Give the employee an opportunity to be heard, and during that meeting, don’t minimize the employee’s complaint. After you have listened to why the employee is upset, ask the employee what outcome he or she is seeking. Sometimes just talking through the problem will satisfy the employee. Other times the employee has demands about what he or she wants to have happen next.

In many cases you will be unable to give the employee what he or she is asking for. However, hear the employee out, involve him or her in the problem solving process, acknowledge his or her proposed solutions and if they won’t work, explain why you cannot honor all or any of the employee’s requests. By doing so, you will make the employee feel valued and respected. The employee who understands the rationale behind an employer’s actions is less likely to impute the employer a discriminatory motive.

By contrast, when an employee’s complaint is ignored or dismissed, the employee feels vulnerable, resentful, and suspicious. The employer’s lack of responsiveness confirms the employee’s belief that the treatment they complained about is wrong. The employee will seek out someone who will listen and respond to the complaint, and that person will be a lawyer.

(3) Provide concrete guidelines about acceptable workplace behavior. Employees respond well to clear expectations. When they know certain behaviors are prohibited, they are less likely to engage in them. The absence of workplace standards breeds conflict and discontentment. Negative and rude workplaces seem hostile to employees. Employers should promote and positively reinforce respectfulness and collegiality between employees. Tell employees they are expected to have a good attitude.

(4) Coach supervisors to be “firm but fair.” Supervisors who yell, embarrass, curse, or otherwise disrespect employees demoralize them. Employees also respond poorly to supervisors who are emotional or who pick favorites. Employees feel set up for failure by these supervisors. They believe the supervisor “is out to get them.” Employees interpret this behavior to be harassing, regardless of whether the supervisor has a discriminatory motive.

(5) Give supervisors the tools they need to remain objective and impartial. Many employee harassment lawsuits are based on allegations that the supervisor “targeted” the employee by unfairly disciplining him or her. Provide clear written guidelines and processes for employee counseling and discipline. Train supervisors on the basics of employment law so they understand why they must discipline employees consistently across the board. Help supervisors “issue spot” for potential liability so they will go to human resources for assistance when needed.

Spending the extra time and effort to implement these practices may seem tedious. But remember, dealing with unlawful harassment wins lawsuits… addressing harassment from the employee’s perspective prevents lawsuits from happening in the first place.