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Outsourced HR: Can An Employee Create A Hostile Working Environment?

By June 7, 2012 February 19th, 2015 No Comments

Full Question: There have been 2 separate complaints in 2 weeks about employees creating a “hostile work environment” for another employee. The “hostile” environment just seems to be strong personalities overpowering more timid personalities. I did not hear anything in the complaints about a protected class. What future steps should we as the employer be taking? Should we be interviewing all parties involved and documenting those interviews?

Response: Employers have a duty to promptly investigate threats, workplace violence, and/or complaints, which may cause harassment or create a hostile work environment. This is true even if the situation complained of does not necessarily rise to a level of unlawful activity. Although each situation is different, as a general matter the employer should first take a written full statement from the alleged victim/complainant, or the employer should write down the conversations then obtain information about each and every instance of the alleged hostile work environment, when and where they took place, and who, if anyone, was present at the time. The employer should then meet with any identified witnesses and take statements, written if possible, but if not the employer should summarize the conversations as well.

The purpose for the documented investigation is to determine whether any individual has (a) violated company policy and/or (b) created a hostile work environment with their comments or conduct. It is then up to the employer to make a reasonable determination of whether a violation occurred based on all the information it has at its disposal including the objective witnesses’ statements. Based on the results of the company’s investigation and review of the company’s handbook policies, the employer should issue discipline consistent with the company’s policy and past practice and document the exact basis for issuing the specific discipline. Depending on the comments made, there could be an issue as to whether the employees’ comments constitute unlawful discriminatory and/or unlawful harassing comments. The employer’s response to the allegations may be lenient if the investigation does not uncover significant — or even any — policy violations, or severe up to and including discharge if the investigation reveals misconduct on the part of the employees that is grounds for dismissal, or somewhere in between.

Even where employees’ misconduct is not unlawful, the employer can and should still require employees to conduct themselves in a professional and businesslike manner, and can issue discipline, even termination, when employees are unprofessional or are otherwise disruptive. The employer’s documentation should be placed in a separate investigative file, and any disciplinary action that would be issued should of course be placed in the appropriate employee’s personnel file. The disciplined employee(s) should be reminded that the employer has a policy against retaliation, and should let all employees know that if there is anything further the employer has an open door policy, as we trust it does.

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