Harassing Employees Through Anonymous Job Reviews
According to the 2014 United States Workplace Bullying Survey, approximately 6.5 million employees said that they were affected by bullying in the workplace. Sometimes this bullying is overt action while in other situations it may only come out in anonymous job reviews of peers. HR professionals should take steps to acquaint themselves with laws related to illegal harassment and investigate ways to improve the employee relationship.
Illegal Forms of Harassment
Harassment is considered a form of employment discrimination that is specifically prohibited by Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act. Illegal harassment under these laws includes unwelcome conduct based on a person's race, color, ethnicity, national origin, religion, sex, pregnancy, disability, genetic information or age if over 40. State laws may provide additional protections based on other factors such as harassment based on a person's gender identity, sexual orientation, height, weight or other information. Employee harassment is considered illegal when it is based on one of these characteristics and enduring the harassment becomes a condition of continuing the employment relationship or the employee harassment is so severe or pervasive that it creates a hostile work environment that a reasonable employee would not be able to tolerate.
Employer Liability for Harassment
Vicarious liability principles can make the employer liable for acts committed by other individuals, such as supervisors, co-workers or even customers. Liability can still arise even if the employer did not take adverse action against the employee. The EEOC imposes automatic liability on an employer if a supervisor's harassment results in adverse employment action like termination, failure to promote or a reduction in wages. The employer is also held liable for a supervisor's conduct if the supervisor created a hostile work environment and the employer failed to attempt to prevent and correct the behavior. Additionally, if the employer knows about employee harassment and failed to take prompt and appropriate action to correct the behavior, the employer can be held liable for the employee harassment even if a co-worker is the one conducting the harassment.
Harassment through Anonymous Job Reviews
In today's technological age, employers may ask peers to review an employee's performance. This may be conducted through an anonymous electronic survey or even an anonymous paper document. Liability may arise, however, if the reviews cause the employer to make an adverse decision about the employee that is based on employee harassment. In a monumental employee harassment case, Price Waterhouse v. Hopkins, a woman was passed over for a job after the male partners of the firm reviewed her. Some of the comments that the partners made were that she was "macho," "overcompensated for being a woman" and that she should "take a course at charm school." Additionally, the male partner who had to explain why she was passed over made the statement that for her to be considered for the position that she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."
According to the Workplace Bullying Survey of 2014, 61 percent of employees said that the employer failed to react to abusive conduct. Prevention is often key in these types of cases. Employers can institute policies that describe harassment and demonstrate the lack of tolerance for such conduct in the workplace. These policies may be included in an employee handbook. An effective grievance procedure that allows an employee to report such incidences without fear of retribution can also give an employer an opportunity to learn about and correct the problem. Before distributing materials regarding an anonymous peer review, employers can explain the purpose of the review and describe the types of comments that may be valuable to the employer while also posting statements that are inappropriate in this context. Extensive training for upper management and all employees can also help curb the rate of incidence of employee harassment in the workplace. An investigation into existing policies and potential modifications can help highlight any gaps in employee training, managerial response or appropriate grievance measures in order to create an environment where employees feel safe to address their concerns.