1. HOSTILE? HARASSMENT ? Or HUMOR? When Does a Workplace Qualify as Hostile?
Presented by: Patti D’Amaddio, SPHR Director Strategic HR Services

2. HARASSMENT ? HOSTILE? Or HUMOR?
Walking on egg shells?
Don’t understand the difference?
Not sure where the line is these days?
Your In Good Company!
Have you ever heard …..
“This is a hostile work environment”
What was the situation / concern ??

3. HARASSMENT ? HOSTILE? Or HUMOR?
Differentiating between illegal behavior and bad behavior can be a real challenge
But it is a critical skill for Managers
Misunderstanding “hostile” can result in misstatement of employee complaints

4. HARASSMENT ? HOSTILE? Or HUMOR?
What Do you Think?
Harassment, Hostile, Humor?
Illegal? Bad Behavior?

5. HARASSMENT ? HOSTILE? Or HUMOR?
Federal and State Laws (Massachusetts, Connecticut and Rhode Island) protect employees against workplace harassment that:
Is made a term or condition of employment OR
The conduct is severe or pervasive enough to create a work environment that a “Reasonable Person “ would consider intimidating, hostile, offensive or abusive to a degree it unreasonably interferes with their ability to perform their work
AND IN MOST STATES….

6. HARASSMENT ? HOSTILE? Or HUMOR?
The behavior must be more than just Bad Behavior, it must be:
Unwelcome, unwanted, unsolicited behavior of a sexual nature OR
Behavior that is offensive, unwelcome, torments or creates a hostile work environment based an individual’s membership in a PROTECTED CLASS

7. HARASSMENT ? HOSTILE? Or HUMOR?
Not every unpleasant workplace would be considered illegally hostile
Title VII is “not a general civility code”
Today a workplace can be disrespectful, degrading and hostile without automatically being illegal
Federal law and most State laws do not prohibit all behavior that creates a hostile workplace
Massachusetts, Rhode Island have proposed bills on workplace bullying
Connecticut had a proposed bill that did not pass
FMLA leave,
Reporting safety violations,
Participating in concerted protected activities
Claim of harassment or discrimination
Today to be illegal there must be a connection between the profanity or hostility and a protected category under the law or behavior of a sexual nature.

8. HARASSMENT ? HOSTILE? Or HUMOR?
Hostile Workplace: Bullying
Have you ever known a work place bully?
What type of behavior did you observe?
Did the behavior create a hostile work environment?
Would you consider the behavior to have been illegal, hostile, bad behavior, all or none of these?

9. HARASSMENT ? HOSTILE? Or HUMOR?
Hostile Workplace: Bullying
Unwanted, uninvited, repeated, offensive, deliberate actions
A pattern of deliberately demeaning, abusive conduct ,of a verbal, nonverbal or physical nature intended to cause intimidation, humiliation, unwarranted distress, and/or result in substantial physical or physiological harm
Derogatory remarks, insults, epithets
Undermining or sabotage an employee’s work or work performance

10. HARASSMENT ? HOSTILE? Or HUMOR?
Hostile Workplace: Bullying
Bullying can look and feel like harassment
Bullying can create a hostile workplace
Some statistics:
61% of U.S. employees aware of abusive conduct in work place
19% have experienced it
19% have witnessed it
72% of bullies outrank their targets
Only 20% of bullying cased include illegal harassment
This means 80% of bullying is “illegal”
BUT is it Right??
Employment lawyers often use the "equal opportunity harasser defense." As long as everyone in the workplace is treated in an equally reprehensible manner without regard to their protected characteristics, or the behavior is not unwanted sexual behavior then the law has not been broken.
9th Circuit Court of Appeals challenge the "equal opportunity harasser" defense a few years back
EEOC v. National Education Association. Thomas Harvey
Harvey was a senior employee a big bully habit of yelling disrespectfully at his primarily female employees and using profanity.
physically threatening, shouting and shaking his fist in people's faces, lunging at them across tables, grabbing them by the shoulders etc.
Harvey never used sexually inappropriate language, gender-specific terminology, did not engage in lewd conduct, nor did he do or say anything else to suggest that his hostility was based on sexual desire or discrimination.
Because of this, a lower federal court in Alaska held that the women who worked for Mr. Harvey had failed to demonstrate that his harassment was "because of sex" and dismissed the case.
The Ninth Circuit reversed that decision. The Court held it was enough for them to show that the impact of his behavior on women was objectively and subjectively harsher than on men. While Harvey was an "equal opportunity harasser," his conduct was still potentially illegal because it hurt women more than men.
other jurisdictions are lining up to adopt the 9th Circuit's view of what constitutes an illegally hostile work environment,and lawyers in the 42 states beyond the Ninth Circuit continue to successfully defend their clients on the basis that the work environment was made equally unpleasant for all.
U.S. Workplace Bullying Survey, Workplace Bullying Institute 2017

11. HARASSMENT ? HOSTILE? Or HUMOR?
Bullying or Hostile…. But Not Illegal
Even if not illegal Hostile work environment
Does that make it easier for your employees to endure hostile or bullying behavior?
As manager you should address the behavior

12. HARASSMENT ? HOSTILE? Or HUMOR?
Impact of Bullying:
Estimates range from $6 billion to $200 billion annually
Where the costs are incurred:
Turnover
Absenteeism / Presenteesim
Productivity
Health risks to the employee (Estimated $5B in related health care expenses annually, attributed to psychological stress created by bullying)

13. HARASSMENT ? HOSTILE? Or HUMOR?
What do employees say?
In my workplace I…
Need to be seen
Need to be heard
Need to be respected and treated kindly
Need to be safe
Need to belong

14. HOSTILE? HARASSMENT ? Or HUMOR?
Assessing the situation:
Determine if the behavior is:
Potentially illegal harassment
Potentially illegal hostile work environment
Potentially illegal discriminatory harassment
Potential bullying
Bad behavior

15. HOSTILE? HARASSMENT ? Or HUMOR?
Assessing the situation:
Know your role and when to engage HR
Listen to the employee dig for and stick to the facts
What
Where
When
Witnesses
Dis and Doc
Dis – directly, immediately and specifically address the behavior
Doc – document the facts

16. Harassment, Hostile and Bad Behavior
Leadership is the Key to Prevention
Harassment, Hostile and Bad Behavior
Create a workplace code of conduct
Include, define and prohibit workplace bullying
Provide multiple complaint / escalation procedures
Foster a culture that supports and places inclusion as a priority and does not tolerate bullying
Lead by example. Model respectful behavior
Intervene when you observe or are informed of workplace bullying

17. Harassment, Hostile and Bad Behavior
Leadership is the Key to Prevention
Harassment, Hostile and Bad Behavior
Reach out and proactively inquire if you suspect a problem
Take every complaint seriously
Don’t over react or jump to conclusions
Prevent it from occurring again (Knew or should have known)
Conduct by-stander intervention training, empower co-workers to intervene when they witness bullying or harassing behavior
Hold employees accountable

18. For your time & your thoughts