Francisco Mundaca

Employment Lawyer and Managing Partner The Spiggle Law Firm

In the modern landscape of professional environments, violence and harassment in the workplace have emerged as critical concerns with far-reaching, and incredibly expensive consequences. Whether subtle or overt, harassment and violence undoubtedly lead to the creation of toxic atmospheres that negatively impact the well-being of employees, erode trust, and impede productivity. Furthermore, these actions create the framework for legal action. The result? The employee's life is forever changed, and the employer is left writing a check to the aggrieved party.

It is imperative to address these issues not only for maintaining a safe and respectful work environment but also for upholding fundamental human rights and fostering a culture of dignity and equity within organizations. There are various ways that employers can minimize their liability and protect employees in these situations. The approach is broad, and it begins with a sound understanding of the law and how it is violated. Next is identifying kinks in the chain within the organization and highlighting areas that need improvement. The final step is implementation and compliance. While this is a multi-step process, it requires a holistic approach.

Let's take a closer look at how workplace violence and harassment is defined, its prevalence, where it's more likely to occur, and what employers can do to create a safer working environment.

How is workplace violence and harassment defined, and what is its prevalence across all industries?

It is important to note that workplace violence encompasses a spectrum of actions ranging from verbal threats and intimidation to physical assault, while harassment may include behaviors such as discrimination, bullying, and sexual misconduct. According to the International Labour Organization (ILO), roughly 20% of workers have experienced violence and/or harassment in the workplace. The ILO defines violence and harassment as any conduct that's likely to result in someone else enduring sexual, economic or physical harm. It can include conduct that ranges from periodic off-color jokes to verbal abuse to physical violence. Research estimates workplace violence and harassment cost employers and their workers at least $56 billion annually. These figures are staggering, and over the years, the legislature has taken note and implemented numerous laws and regulations at both the federal and state levels that govern workplace conduct to ensure a safe and equitable atmosphere for all employees and employers.

For instance, the Occupational Safety and Health Act (OSHA) mandates that employers provide a workplace free from recognized hazards, including those that may cause physical harm due to violence. Additionally, Title VII of the Civil Rights Act of 1964 is a landmark federal law that prohibits employment discrimination and harassment on the basis of race, color, religion, sex, and national origin. The catch? It only applies to employers with fifteen (15) or more employees. In fact, many states mirror the federal law's language, and it clearly leaves pockets of employees and employers without a legal mechanism.

Nonetheless, many instances do fall into the purview of federal and state law. However, proper analysis is required to ensure that the employee has a legitimate claim and that the employer did, in fact, have knowledge of the illegal behavior. Both are a requirement in most scenarios.

You may be wondering whether certain jobs, occupations, or industries experience higher levels of harassment or violence than others. The short answer is yes, and it may come as a surprise that one needs to look no further than the service industry.

Higher rates of workplace violence and harassment in the service industry

The service industry encompasses many professions and includes businesses such as restaurants, retail stores, and healthcare facilities. There are several reasons why service industry workers are more likely to encounter harassment or violence in the workplace, both internally (amongst and between employees) and externally (at the hands of customers and clients).

External workplace violence in the service industry

Workers in the service industry are frequently in client-facing roles. This alone increases the risk of encountering aggressive or inappropriate behavior from patrons, including verbal abuse, harassment, or even physical violence. Employees may be subjected to hostile or disrespectful treatment from customers who are dissatisfied with service or have personal issues such as mental health disabilities.

The employee may be working at an establishment where alcohol is served. Thus, increasing the risk of harassment or violence. This is one reason why members of the food service industry are often victims of harassment and violence.

Internal workplace violence in the service industry

The service industry is often a fast-paced and high-stress environment. As such, employees may face pressure to meet demanding deadlines, handle difficult situations, or manage challenging customers. Naturally, stress exacerbates tensions and undoubtedly increases the likelihood of conflict or misconduct among coworkers.

Finally, some employees in the service industry may not prioritize employee training or allocate sufficient resources to address workplace violence and harassment effectively. Language barriers also pose an obstacle for education purposes.

In some industry settings, there can be significant disparities in power dynamics between management and frontline employees. This imbalance creates opportunities for abuse or exploitation, with managers or supervisors engaging in harassment or discrimination. This power imbalance also creates an inherent fear for employees who feel vulnerable to retaliation if they speak out or complain about any incident. The amount of underreporting is likely staggering.

What employers can do to protect their workers

According to OSHA, one of the most important things employers can do is create a zero-tolerance policy concerning violence, harassment, and other unwanted workplace behavior. This policy should cover not just the workers, but also clients, guests, visitors, customers, contractors, and anyone else who may have interactions with the employer or its workers.

This policy should be in writing and communicated to the employees. This can include putting the information on posters in common areas, in the employee handbook, and/or adding the information to any employee training programs. Whatever the policy is, it should be unambiguous and part of the employer's overall culture that both encourages workers to look out for each other and discourages improper behavior. Management should also abide by this policy and be willing (and able) to enforce it when necessary.

There can also be administrative and engineering controls that the employer can implement. For instance, the employer can set up a reporting system for workers to use if they observe or experience harassment or violence (a type of administrative control) from a coworker or manager. As for engineering controls, the employer can also modify the workspace to reduce the likelihood of harm from external sources.

For example, a convenience store employee working alone, and late at night, could work from behind bulletproof glass in a secure part of the store. In another scenario, an employee who works alone, cleaning hotel rooms, can carry a panic button on their person (this is actually a legal requirement in New Jersey).

Lastly, the employer can regularly reassess its efforts to protect its workers, both internally and externally. This might include analyzing statistical data, talking to employees, reassessing the risks to its workers, and modifying its policies and procedures accordingly.

Besides protecting workers, implementing some of the above-discussed changes can help protect employers from legal problems in the future. For instance, if a supervisor harasses an employee by taking an adverse employment action against the employee (such as firing them or reducing their pay), then the employer will usually be liable for that supervisor's wrongful conduct.

However, if the supervisor's harassment takes the form of a hostile working environment, the employer can often avoid legal liability if they can show two things. First, that the employer took steps to prevent and stop the harassment. Second, that the employee being harassed did not take advantage of the policies and procedures the employer put in place to protect them.

Bottom line

Workplace harassment and violence (from both internal and external means) are major problems, from both the perspective of a business's bottom line and the well-being of its workforce. Luckily, there are steps employers can take to significantly reduce the risk of harm workers potentially face while doing their jobs.