Bill McQueen gives us some critically important pointers. Part 1 of 2
Over my career I have led three companies that faced harassment charges made by employees. Because I had policies and procedures in place and followed them to the letter all were resolved in favor of the company. That is not to say harassment doesn’t happen or that some grievances aren’t legitimate. Rather, it is to say this is an area that is too dangerous to be neglected. It could cost you your company. I reached out to my friend Bill McQueen to share some pointers with us. Bill is the former partner of Anderson – McQueen Funeral Home and is now Managing Partner of McQueen & Siddall a practice he started recently and is growing geometrically. Here is part one of two articles he has written for us.
Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA). Harassment is defined as “unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.” Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
When most business owners hear the phrase “workplace harassment” certain images typically come to mind. In particular, many funeral home owners may think of “sexual harassment” as being synonymous with “workplace harassment”. With the funeral profession having been male-dominated for many generations, this may have been the primary concern for the owner or manager of a funeral home business. However, they really should not limit their concern to just this aspect.
Workplace harassment law has a remarkable breadth of reach especially in the area of restriction of speech in the workplace. This restriction goes well beyond the slurs, hardcore pornography, repeated vulgar sexual propositions and the like. Workplace harassment laws can affect many types of speech, among other things, including political statements, religious proselytizing, legitimate art, sexually themed jokes, and other kinds that are generally seen as being entirely constitutionally protected.
Note what the definition does not require. It does not require that the speech consist of obscenity or fighting words or threats or other constitutionally unprotected statements. It does not require that the speech be profanity or pornography, which some have considered “low value.” Under the definition, it is eminently possible for political, religious, or social commentary, or “legitimate” art, to be punished.
Courts have found “unwelcome conduct” to include religious articles in employee newsletters or Christian-themed verses on paychecks. One court found that the use of the words “foreman” and “draftsman” could rise to the level of sexual harassment. Courts have held that the workplace environment can be considered a hostile environment even if the affected employee is not present when the affected action takes place. This case involved an employee who later became aware of a “racially derogatory comment or joke” told by a fellow employee and that second hand knowledge alone was enough of an impact to create the “hostile environment”. Last, courts have held that even a single incident of prohibited speech can be sufficient to meet the “severe or pervasive” in nature requirement.
So, if you are a funeral home owner, you might feel that the courts will bend over backwards to find in favor of an employee who brings a harassment claim against your business. Unfortunately, your viewpoint is very much on point. In my experience, often these claims are being made after you have terminated an employee for other poor job performance reasons. That is why for your protection, and the protection of your business, you need to take the necessary steps to prevent or reduce the likelihood of a harassment claim being successful. As with many areas of the law, much of your protection will lay in how well you document the steps you have taken to prevent the cause of action from occurring in your workplace.
In my next blog post, I will share some preventative steps that every funeral home owner should take to reduce the probability of a successful harassment claim against his business.
NEXT WEEK PART 2 “MINIMIZING THE POTENTIAL FOR HARASSMENT IN YOUR FUNERAL HOME.”