Originally published in Today’s Veterinary Business, February 2019
Harassment creates a negative environment in the workplace, lowering morale, reducing productivity, and otherwise upsetting employees. It can take the form of unwanted flirtation, forced touching, or inappropriate jokes about an employee’s religion, race or sex. It could involve an unwillingness of someone to work with, for example, a sight-impaired employee. Harassment can also occur when someone inappropriately contacts an employee outside of work hours. Any behavior that threatens another person, humiliates him or her or otherwise victimizes a person can be considered harassment.
When employee harassment occurs, and all parties involved are working at your practice, the situation can be challenging; but hopefully you can have a process in place to deal with the situation.
What do you do when the person accused of harassing one or more of your employees doesn’t work at your practice? Perhaps the person is the janitor for the building where your practice is housed, a pharmaceutical salesperson or a landscaper. The accused could be an investor, a shareholder or even a client. The harassment could happen in person, in writing or on the phone, by email or even through social media postings.
So, what do you do?
First, it’s important to educate yourself and your managers about the laws surrounding third-party harassment, including case law, so your practice team has a solid foundation on which to form third-party anti-harassment policies and procedures. At the core of relevant case law is Freeman v. Dal-Tile Corp., the case in which the United States 4th Circuit Court of Appeals ruled that, yes, employers can be held liable when a third party engages in acts of workplace harassment.
In this landmark case, the plaintiff asked her employer for help when an independent sales representative who came into the company repeatedly subjected her to harassment, both sexual and racial. She did not feel her company protected her and she ultimately resigned. She then filed a complaint with the U.S. Equal Employment Opportunity Commission, stating that the workplace environment was hostile, and the reporting system was not working.
Educating your management team about this case is crucial to set the stage about how seriously these behaviors are now taken in federal courts. Also, be knowledgeable about and share how your state laws read, because specifics do vary by state.
Then, after making sure your managers are clear about these laws, it’s important to discuss what’s needed in your practice to create appropriate policies, procedures and channels of communication so that your employees, unlike the plaintiff in the case described above, can be promptly heard and remedies readily applied.
Include expectations of third-party vendors in your employee handbook, and let employees know how to inform you about any harassment by them. Be crystal clear that you have zero tolerance for this type of harassment, stating that any instances should be immediately reported. Review these guidelines with new employees and regularly revisit them when you review your handbook with all employees annually.
When Choosing Third-Party Vendors
Clearly communicate your expectations to vendors when you select them, letting them know that appropriate behavior in your practice is required. It can help to schedule an orientation-type meeting when you choose a new vendor, whether a salesperson from a drug company, someone who services office equipment or a contractor. Whenever you professionally communicate expectations, it’s more likely that they’ll be met. Although these types of conversations may initially feel awkward, companies with similar philosophies will respect your boundaries. And, if a third-party company is not comfortable with a professional discussion about the prevention of employee harassment, it’s not a company you would want to continue to do business with.
When an Employee Complaint is Made
A prompt response is crucial to maintain a professional workplace where employees are respected. Plus, if the case ultimately goes to court, your speed of response may become an important factor. If you do not act immediately, it could be considered a lack of care and potentially contribute to a decision that your practice is an unsafe work environment.
Your practice should investigate the complaint, just as you would if the accused harasser worked for your practice, although specifics of the investigative process may differ. The investigation should be prompt, unbiased and fair, with no assumptions made ahead of time.
While the investigation is ongoing, you can adjust the affected employee’s (or employees’) duties to protect him/her/them from the accused harasser. Do so in a way that has the least impact on employees’ jobs. This is important because, if any change in duties negatively affects the employee who lodged the complaint, this can be considered unlawful retaliation.
If your investigation indicates that harassment is occurring, have a conversation with the third-party vendor and/or his or her human resources department, as applicable. You may need to break off the relationship with the vendor, or you may be able to continue the relationship with the company with a different representative.
Depending upon specific circumstances, there may be other steps to take, including preventive measures to provide additional protection to employees going forward. This should include, but is not limited to, reviewing your employee handbook to ensure that the procedure to file harassment complaints about third parties is optimal (or if policies and procedures related to this situation need updating). Policies must contain the same zero tolerance language as harassment policies created for intra-practice situations and must provide protections to witnesses to the harassment who come forward with relevant information.
When you do your annual review of your employee handbook, use it as an opportunity to further educate employees on third-party harassment, including how it is defined and how they should respond if they see it happening at your practice. Encourage your employees to speak up and let them know that you will protect them from retaliation.
Whenever this type of situation arises, consider seeking out the advice of experienced attorneys, especially if you haven’t handled something similar before. Better yet, talk to an attorney when creating your policies, which will help to ensure that if third party harassment situations do arise at your practice you have systems in place to swiftly deal with them. This protects your practice, as well as your employees and vendors.
Remember to maintain confidentiality. It’s crucial that your employees feel safe in reporting harassment issues, including with third parties. This will play a significant role in creating an overall safe workplace, and one that is stronger, more productive, and more successful.
Note About Client Harassment
It can be especially challenging if an employee experiences harassment from a client. Because it can affect practice revenue, employees may be especially reluctant to report these situations. For this reason, it’s important that your practice policies explicitly state that harassing behaviors by clients should be reported, and that they will be thoroughly investigated and appropriately handled.
Regardless of the parties involved, the act of harassment in the workplace is a serious matter that should be addressed immediately. Your practice should have a policy in place to deal with it and everyone working at the practice should be educated about it. This will promote a safe working environment where everyone can do their job successfully.
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