Relations: Bullying and Harassment Claims

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Relations: Bullying and Harassment Claims

by Betsy Barbieux, CFCAM / Published July 2014

 

Bullies exist. Harassment, sexual and nonsexual, exists. Workplace violence exists. But most residents or board members don’t connect these issues to their community associations. They don’t realize all this may be happening right where they live. What’s worse is a few residents don’t realize they are the culprits.

The general public is probably familiar with prohibitions against supervisor/employee or employee/employee harassment. But, how many are aware of something called “third-party” harassment?

Third-party sexual harassment happens when the harassment is committed not by another employee, but by an outsider. Typical perpetrators of this type of harassment include clients, customers, vendors who come on site or otherwise interact with employees, independent contractors who work for the company, and employees or contractors of a different company (for example, a security guard who is responsible for an office building where the company does business, maintenance and repair personnel who regularly come on company property, or caterers who work company events).*** 

While many associations may only have one or two employees, they have dozens and hundreds of residents, a few of which could become the “third party.” Visualize an angry resident charging into the association office (more than once), yelling at the manager, threatening bodily harm, calling her names with so much venom that the veins in his neck pop out. This angry resident might be considered a “third-party” harasser. The association could face some risk here and the board needs to act immediately.

Apparently, this type of behavior happens often enough that the insurance industry has created a policy to cover various employment risks. It is called an Employment Practices Liability Insurance (EPLI) policy. It covers such risks as:

  • Wrongful termination claims•Discrimination claims
  • Sexual harassment claims•Whistleblower claims
  • Wage and hour claims
  • Other employment-related claims (which could include libel, slander, or other defamation, invasion of privacy, mental anguish, infliction of emotional distress, loss of consortium, assault, battery, breach of contract, negligent hiring, supervision, and promotion or retention in connection with any other employment-related claim)*

Having EPLI insurance is a good practice. But check your policy carefully. You could be required to include certain definitions, policies, and provisions in your employee handbook. One of which could be the definition of bullying and harassment. What is the difference between bullying and harassment? Bullying may be characterized as offensive, intimidating, malicious, or insulting behavior, or an abuse or misuse of power through means that undermine, humiliate, denigrate, or injure the recipient.**

Harassment is unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for that individual.** Whether your association has one employee or dozens, you must include in your employees’ handbook policies as required by your EPLI policy.

Here is an excerpt from a cooperative association’s employee handbook:

PROHIBITED HARASSMENT

The association prohibits sexual harassment and harassment because of race, color, national origin, ancestry, religion, creed, physical or mental disability, marital status, medical condition, age, or any other basis protected by federal, state, or local law. All such harassment is unlawful and will not be tolerated.

SEXUAL HARASSMENT DEFINED

State and federal law defines sexual harassment as unwanted sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature when: (1) submission to the conduct is made a term or condition of employment; or (2) submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or (3) the conduct has the purpose or effect of unreasonably interfering with the employee’s work performance or creating an intimidating, hostile, or offensive working environment. This definition includes many forms of offensive behavior including: 

  • Unwanted sexual advances;
  • Offering employment benefits in exchange for sexual favors;
  • Making or threatening reprisals after a negative response to sexual advances;
  • Visual conduct such as leering, making sexual gestures, or displaying sexually suggestive objects, pictures, cartoons, or posters;
  • Verbal conduct such as derogatory comments, epithets, slurs, sexually explicit jokes, or comments about any employee’s body or dress;
  • Verbal sexual advances or propositions;
  • Verbal abuse of a sexual nature, graphic verbal commentary about an individual’s body, sexually degrading words to describe an individual, or suggestive or obscene letters, notes, or invitations;
  • Physical conduct such as touching, assault, or impeding or blocking movements; and
  • Retaliation for reporting harassment or threatening to report harassment. It is unlawful for males to sexually harass females or other males, and for females to sexually harass males or other females. Sexual harassment on the job is unlawful whether it involves coworker harassment, harassment by a manager, or harassment by persons doing business with or for the association.

OTHER TYPES OF HARASSMENT

Prohibited harassment on the basis of race, color, national origin, ancestry, religion, physical or mental disability, marital status, medical condition, sexual orientation, age, or any other protected basis, includes behavior similar to sexual harassment, such as:

  • Verbal conduct such as threats, epithets, derogatory comments, or slurs;
  • Visual conduct such as derogatory posters, photographs, cartoons, drawings, or gestures;
  • Physical conduct such as assault, unwanted touching, or blocking normal movement; and
  • Retaliation for reporting harassment or threatening to report harassment. 

Boards of directors must take action when residents bully or harass their employees. If you are in doubt as to how important and serious an issue this could be for your association, consult with your insurance agent. In today’s litigious society with uncontrolled emotions and people who seem to have forgotten their manners, be sure you have current and adequate Employment Practices Liability Insurance coverage. And do not fail to take immediate action when such behaviors become known to you!

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