Stopping Harassment Before it Starts Includes Dealing with Bullying

13 December 2021 Labor & Employment Law Perspectives Blog
Author(s): Dabney D. Ware

Toxic workplaces have been making plenty of headlines lately.  Recent stories about toxic workplaces - and some of the fallout – have spanned all sorts of industries, from government to video gaming to professional sports.

What makes a workplace toxic?  There’s probably an academic definition (or two), but what’s intended for purposes of this article is behavior that is intimidating, demeaning or belittling, and is either severe, ongoing, or both.  It typically involves someone taking advantage of a power difference, real or perceived.  The power difference may come from official position or title, it may come from long tenure with the organization, it may come from namedropping or sense of connections to power within the organization, and it may come from being a rainmaker, superstar, or someone identified as high potential.  The person or group on the receiving end lacks such power and often receives a message, not always in so many words, that any complaint will not be believed or taken seriously.  Critically, there are usually instances of demonstrating poor behavior in front of others, without intervention or acknowledgement, signaling the behavior is accepted.

A toxic workplace can be especially difficult to deal with because rude (or worse) behavior, unless tied to a protected characteristic, is not necessarily harassment or discrimination under the law.   Even the Supreme Court says companies are not required to be manners police, and most  certainly do not want to be tasked with managing the manners of our coworkers.  After all, we are all capable of an off day when we are not as kind or considerate as we aspire to be.  We hesitate to call out the poor behavior in someone else, either to avoid embarrassment or confrontation, because it’s not a good time and then it’s too late, or because it could be us the next time.  Unfortunately, this tolerance likely contributes to a bigger problem, allowing the poor behavior to grow into illegal harassment.

The problem is not new.  In 2016, the EEOC reported that training to stop or prevent harassment was largely missing the mark.  Among other things, the EEOC suggested training focus more on preventing poor behavior(s) that tends to escalate into harassment, namely bullying.   

With that suggestion in mind, what should be done to improve processes? What can you do? 

  • Make sure your training programs address behaviors that are common precursors to harassment or discrimination (either as part of EEOC training or something separate).

  • Consider whether your complaint process would allow or even encourage complaints that do not fit the typical paradigm of unlawful discrimination or harassment.  If not, consider broadening your process or developing something different that can help address concerns before they become formal complaints.  (And be prepared to hear and listen more.)

  • Consider how to ensure appropriate confidentiality but also have a way to recognize a pattern of poor behavior attributed to an individual or group.

  • Don’t communicate tolerance as a bystander.  If you recognize someone is uncomfortable, intervene.  Intervention does not have to be an admonition or correction, it can simply be a diversion. 

  • Foster dialogue about how to improve, starting with yourself and those comfortable with you. Are you quick to apologize if you were short with someone? If you made a remark or told a joke that someone that was too stereotypical or otherwise offensive, would someone tell you they had been uncomfortable? To be clear, you probably are not the problem. But more dialogue means more opportunity for everyone to improve and recognize what or who might be a real problem.

These are just a few suggestions and none of them are very easy to accomplish.  But, they do not cost much and may save a lot of money. No one wants to deal with the publicity or litigation that often comes with making the headlines for having a toxic workplace. But, the more common costs are low productivity and high turnover. It’s worth another look.

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