Andrew P. Brucker in Legal/Financial on January 18, 2018
One cannot open a newspaper or listen to the news without hearing the latest reports of harassment. Although harassment can take many forms, the law is clear: harassment in the workplace is considered a form of discrimination, and it’s illegal. The financial ramifications to an employer – including co-op and condo boards – can be devastating. Therefore, every employer should make it clear that such behavior will not be tolerated.
The best way to establish zero tolerance toward harassment is to create a written policy and distribute it to everyone working or living in the building. A policy is not a bar to claims or liability. But if it prohibits harassment, includes an effective complaint procedure, and is implemented and enforced consistently, a harassment policy provides the co-op corporation or condo association with arguments and defenses against liability.
While sexual harassment has been getting most of the headlines lately, illegal harassment includes a long list of inappropriate behavior, such as offensive or unwelcome comments in regard to race, color, religion, age, appearance, sexual orientation, national origin, disability, among other factors. Perhaps the most common form of harassment is “bullying.” Harassment can also be non-verbal, such as distribution or display of any material that ridicules, denigrates, insults, belittles or shows disrespect towards an individual or a group because of the above characteristics or traits.
Sexual harassment occurs when unsolicited and unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature is made explicitly or implicitly a condition of employment; or is used as a basis for an employment decision (such as raises or promotions); or unreasonably interferes with an employee’s performance or creates a hostile or offensive environment. This includes verbiage of a sexual nature, the display or distribution of sexual materials, or inappropriate and unconsented touching. The verbiage of a sexual nature may include lewd remarks, jokes, innuendos, or simply inappropriate comments.
After adopting a harassment policy, co-op and condo boards should consider providing training to residents, board members, and employees regarding the elements of the policy. This will make it clear what harassment means, that it will not be tolerated, and that people are encouraged to complain if they have been harassed or have witnessed harassment. Such training will also make it clear what will happen if harassment has taken place.
A discussion between the board and its attorney is highly suggested, especially in light of the current atmosphere.
Andrew P. Brucker is a partner in the law firm of Montgomery McCracken Walker & Rhoads.
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