Corporate ethics and compliance programs need to address a huge range of issues: proper corporate accounting, anti-corruption law, cybersecurity standards, human trafficking, and much more. And then there’s many types of workplace harassment—a corporate misconduct issue in a class unto itself.
Harassment is a chronic problem in Corporate America. Despite ever more awareness of harassment as an issue that needs attention, the volume of harassment complaints seems to have held remarkably steady.
For example, the Equal Employment Opportunity Commission received 27,350 harassment complaints in 2010. At the end of the decade—a decade that included the #MeToo movement raising awareness of sexual harassment, and Black Lives Matter doing the same for racial harassment—the EEOC received 26,220 harassment complaints, a drop of 4.1 percent. That’s hardly enough of a decline to suggest a more enlightened approach to how employees handle our coworkers.
The EEOC numbers are only one slice of the whole picture, too. They don’t include complaints filed with state fair employment agencies, or harassment lawsuits filed in court, or employees who get fed up with harassment (either receiving it, or witnessing it) and walk out your company’s door.
So how can we define harassment more precisely? And what steps can compliance officers then take to address this pernicious behavior in an effective way?
What is Workplace Harassment?
Legally, the EECO defines harassment as “unwelcome conduct” based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. Numerous state laws include other categories, such as a person’s weight, whether the person is a smoker or the person’s past arrest record.
The EEOC has two criteria for what qualifies as unwelcome conduct that’s so egregious it crosses into unlawful behavior. First, enduring the offensive conduct becomes a condition of continued employment; or, second, the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
The critical issue here is that the unwelcome conduct must create a work environment “that would be intimidating, hostile, or offensive to reasonable people,” according to the EEOC. Petty annoyances (say, a coworker popping bubble gum in the next cubicle over) don’t count as harassment. Isolated incidents usually don’t count as harassment either.
To qualify as harassment, the offensive behaviors need to be severe, or pervasive, or both. The behaviors themselves, however, can be anything from offensive jokes cracked in the office, to lewd pictures taped to someone’s desk, to mockery and put-downs in public, to threats of physical assault—or plain old interfering with a person’s ability to do his or her job undisturbed.
Types of Workplace Harassment
Compliance professionals already understand the types of workplace harassment when we think in terms of the victim. That is, harassment can happen against people of a certain gender, race, sexual orientation, physical handicap, age, and so forth.
Most compliance officers have seen those types of harassment before, and corporations already have one weapon to use against it: anti-discrimination policies, where the company prohibits unwelcome or hostile behaviors against certain categories of coworker.
Unfortunately, compliance officers also have to deal with harassment against specific individuals. For example, a supervisor might harass one specific Muslim or black or older employee, but not others; or the supervisor might harass someone for reasons that have nothing to do with race, gender, age, or similar factors.
So if we really want to understand the different types of workplace harassment, we should also think about it in terms of behaviors, no matter who the victim is. For example...
1. Abuse of Power
A manager can make unreasonable demands of an employee. That could include shifting deadlines on a project; imposing requirements the employee could never fulfill (say, asking the receptionist to do software coding); or imposing job duties that are demeaning and beneath an employee’s rank (telling the new vice president and deputy team leader to fetch coffee). In some jurisdictions, abuse of power could include making constant demands during off-hours.
2. Psychological Harassment
Psychological harassment can be overt or subtle. For example, coworkers (or managers) might exclude an employee from staff gatherings; or constantly put down the employee’s suggestions. Coworkers could also harass the employee by making him or her the victim of incessant pranks, or by leaving disturbing pictures or objects at the person’s desk or locker.
3. Online Bullying
Not surprisingly, this form of harassment has become a much greater concern since the pandemic forced large portions of the workforce to work from home. In some ways, online harassment can be even more subtle than in-person harassment: a coworker sending an emoji with ambiguous context, that could be construed as flirty; a supervisor sending emails or messages at all hours, where the employee feels that his or her personal time has been erased.
4. Retaliation
Compliance officers should understand this one already. Essentially, retaliation is harassment for something the employee has done, rather than for who the employee is. The employee spoke up about something—misconduct he or she has seen, or even harassment he or she has experienced—and the perpetrators or others respond with even more harassing behavior to “punish” the first employee for speaking up.
How to Reduce Harassment
Compliance officers should adopt a “whole program” strategy to fight workplace harassment. Meaning, you need to mobilize just about every part of your compliance program to work against all types of workplace harassment in a coordinated fashion.
Tone at the top
Employees listen to the messages that senior leaders communicate. So if you want a workplace culture that opposes harassment, discrimination, and retaliation, the senior management team needs to say—and demonstrate—that those things aren’t tolerated.
Policies and procedures
We touched on the importance of anti-discrimination policies earlier. Your code of conduct and employee policy manual should, however, go further than that, and specify that any form of harassment (with examples) won’t be tolerated. Implement disciplinary procedures for offenders, and be sure those procedures are followed.
Training
Compliance officers can’t assume that employees will understand what constitutes harassment, especially if you have a global workforce straddling multiple cultures. Training should explain the harassing behavior you want to reduce, and how employees suffering harassment can report it. Training should also help managers and coworkers recognize harassment that happens to others, and to understand that anyone can report harassment when they see it.
Internal reporting
Your internal reporting channels should be able to field harassment complaints. That means designing online forms or call center scripts to ask the right questions to solicit the details you need for further investigation. Your investigation protocols should also be designed to protect the identity of the reporter, so his or her report won’t just lead to further harassment.
Audits and remediation
Newsflash: your policies, procedures, and training won’t be perfect. You’ll still need to assess how and where harassment happens within your organization, such as by studying internal reporting data, exit evaluations from departing employees, and employee satisfaction surveys. You should then follow up with changes and improvements where necessary and document those efforts for any external review that might come along from regulators or other third parties.
Compliance Plays a Critical Role
As we saw in those EEOC statistics above, harassment is a persistent problem in Corporate America. Compliance functions can play a crucial role in fighting it, but harassment is not a problem with any quick fix. What’s necessary is a change in corporate culture—and that takes dedication, determination, and patience.
And a compliance program that fires on all cylinders.
Matt Kelly is an independent compliance consultant and the founder of Radical Compliance, which offers consulting and commentary on corporate compliance, audit, governance, and risk management. Radical Compliance also hosts Matt’s personal blog, where he discusses compliance and governance issues, and the Compliance Jobs Report, covering industry moves and news. Kelly was formerly the editor of Compliance Week. from 2006 to 2015. He was recognized as a "Rising Star of Corporate Governance" by the Millstein Center in 2008 and was listed among Ethisphere’s "Most Influential in Business Ethics" in 2011 (no. 91) and 2013 (no. 77). He resides in Boston, Mass.