Wednesday, 26 August 2015 18:58

The Changing Face of Workplace (Mis)Behavior

Written by Jay Ingle

Bad Egg

The issue faced by human resources professional are evolving quickly. Years ago, the primary focus from a legal point of view was on avoiding instances or accusations of sexual harassment. As the workplace has changed and some of the offensive gender-based conduct of the past has waned, new challenges have arisen. The legal protections for employees have grown and the types of actionable workplace misconduct have expanded.

The Types of Discrimination Charges
A review of the trends in charges filed with the Equal Employment Opportunity Commission shows that more and more different types of charges are being filed. For example, the number of charges based on sex has stayed roughly the same over the last 15 years, but the number of ADA claims has increased nearly 50 percent. While still fewer overall, the number of religion- based claims has almost doubled and the number of national origin claims has increased by about 30 percent. Retaliation claims have almost doubled in the same time period.

Of course, those are not the only types of claims. There are also claims the can be pursued under the Kentucky Civil Rights Act, Title VII, Fairness Ordinances, the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, and others.

Work Place Charges

How to Prevent Claims
The first step toward avoiding claims is to prevent a workplace atmosphere that allows discriminatory conduct to exist. The first step towards accomplishing this goal is to implement a strong anti-harassment and anti-discrimination policy. Such a policy should include:

• Prohibition of inappropriate conduct
• A definition of what conduct is inappropriate
• A mechanism for employees to report inappropriate conduct
• A resolution process
• A statement that there will be no retaliation due to legitimate complaints.

Of course, a strong anti-harassment and anti-discrimination policy is only effective if it is communicated to employees and enforced by management. If a complaint arises, the policy must be followed, including a proper investigation and resolution.

Workplace Bullying and Violence
Another issue facing human resource managers is workplace bullying and workplace violence. According to the Workplace Bullying Institute’s “Workplace Bullying Survey” completed in February of 2014:

• 27 percent of Americans have suffered abusive conduct at work
• 21 percent have witnessed it
• 72 percent are aware that workplace bullying happens
• 69 percent of bullies are men
• 57 percent of male bullies target men
• 31 percent of bullies are women
• 68 percent of female bullies target women.

For more on workplace bullying, visit www.workplacebullying.org Sometimes, the conduct goes well beyond bullying and shifts to violence. Based on information published by the Bureau of Labor Statistics, workplace violence was responsible for over 380 fatalities. Workplace violence can exist in any profession, but it most likely to occur in the retail, food and hospitality, financial, and healthcare industries.

While workplace bullying is not necessarily grounds for a lawsuit, unless it is motivated by the victim’s inclusion in a protected class, this doesn’t mean it should be ignored. Even if the bullying does not rise to the level of a lawsuit or escalate into workplace violence, it has significant effects on the workplace, including:

• High turnover
• Low productivity
• Absenteeism
• Low morale
• Increased accidents on the job
• Retaliation against the employer

To confront and stop workplace bullying, HR professionals can take several key steps:

• Establish an anti-bullying policy that explains what bullying is and that it is unacceptable behavior.
• Train managers and all other employees on the policy.
• Establish processes for identifying, reporting, investigating and resolving complaints.
• Conduct periodic employee attitude surveys to determine if workplace bullying is not being reported.

Again, like with any good human resources policy, such a program is only effective if known by the employees and followed by management.

Jay Ingle is a Member at Jackson Kelly, PLLC. Jay’s practice areas include business law and civil litigation, with a focus on commercial litigation, employment law, equine law, health law and medical malpractice. He can be reached at jingle@jacksonkelly.com

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