Answer: While it’s ideal for employees to follow the reporting procedure in your harassment policy, unfortunately that procedure may not always be followed. When you receive information about inappropriate behavior by other means (e.g. a manager observes the behavior; an employee mentions it in passing to a supervisor; employees are overheard talking about it, etc.), the company still has an obligation to respond.
Inaction Leads to Liability
When it comes to liability for co-worker to co-worker harassment, the company is liable if it knew or should have known about the inappropriate behavior. From a legal standpoint, it doesn’t matter whether the company learned about the harassment through a formal complaint or obtained the information informally. So, if your manager observes behavior that violates your harassment policy and does nothing about it, the inaction will create legal liability—just as if the company failed to act on a formal harassment complaint. For this reason, it’s important that your managers and supervisors understand what to do if they witness or hear about conduct that violates your harassment policy.
Discipline for Failing to Follow Procedure? Proceed with Caution
As for disciplining an employee who doesn’t follow the reporting procedures contained in your policy, proceed with caution. An employee may have valid reasons for not following your reporting procedures. For example, if the employee is the victim of harassment, they may feel intimidated by talking to the company about the issue or feel that their supervisor can’t be impartial in investigating the conduct. Other factors, such as consistency of policy enforcement and possible retaliation claims, should also be considered when deciding whether to discipline an employee for failing to follow your policy.
Harassment in the Workplace: Resources for Employers
To learn more about this topic, review our Legal Guide, Harassment in the Workplace: Avoiding Liability.
When was the last time you conducted harassment training for your supervisors? If it’s been awhile, it might be a good time to renew their knowledge. Since your supervisors are your first line of defense against harassment complaints, it’s vital that they understand their rights and responsibilities. Check out our harassment training courses or contact us to see how we can help you with harassment prevention in your workplace.
If you have questions about a specific circumstance, contact your Vigilant employment law attorney. Not a member? Members receive unlimited employment law advice services for a flat monthly fee. Inquire today about membership.
Question: Our harassment policy specifies how employees should report issues to the company. If no one formally reports inappropriate behavior, do we need to do anything about it? Also, can we discipline an employee for not following our reporting procedures?
