Legal responsibilities of management re: harassment between employees
September 19, 2017 7:25 PM   Subscribe

What legal responsibilities or consequences are there for someone in a management position when it's discovered that one employee is sending harassing messages to another? Not sexual harassment, but expletive-laden rants about how terrible the employee is, how stupid, how bad at their job, how they need to quit, etc.

So I'm going to be vague about this, for which I apologize. The situation is that one employee is sending lots and lots of very long text messages to another about work stuff, complaining about everything, using very derogatory and foul language. The sender is male, the recipient female, but there's nothing sexual in there, and I don't THINK any specific slurs. Just "you're a fucking moron" etc... No specific threats, but let's just say I'd feel pretty threatened by some of the language and the intensity of it. They are also apparently totally unjustified because the thing he was specifically complaining about wasn't done by this individual at all.

So, management having been made aware of this, what potential legal issues are there if, say, nothing is done about it. This is in Texas.

I'm not asking what is morally right or what someone should do. That's pretty clear. It's also pretty clear that this behavior violates the corporate policies. But what if management decides not to do anything, but this is documented? Is this just a "wow that's shitty, but it's a judgement call" situation, or are there potential consequences for the employer?
posted by threeturtles to Work & Money (28 answers total)
 
The EEOC on harassment:
The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.

When investigating allegations of harassment, the EEOC looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.
posted by xyzzy at 7:33 PM on September 19, 2017 [2 favorites]


Response by poster: Yeah but from that page it requires the harassment to be "unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information" and I don't think you can make the claim easily that this is one of those. It's more workplace bullying, I guess.
posted by threeturtles at 7:35 PM on September 19, 2017


The sender is male, the recipient female. That's enough. You say there is nothing sexual about it. Maaaaybe. A jury could disagree. You don't want to find out. Call the legal department.
posted by kerf at 7:38 PM on September 19, 2017 [13 favorites]


And not to abuse the edit window: how about stalking? Anyone want to see that in the newspaper? Call legal.
posted by kerf at 7:39 PM on September 19, 2017 [4 favorites]


My dad successfully represented several employees as a labor relations specialist who alleged a hostile work environment based on workplace bullying.
posted by xyzzy at 7:40 PM on September 19, 2017 [6 favorites]


Response by poster: Okay. To be clear it's not me involved in the situation, and the person I'm asking for took it to the person directly above them who has declined to act. Due to workplace politics "going over their head" is something they are reluctant to do so I'm looking for additional information really.

And yeah, I think gender is a factor here, just there wasn't anything overtly sexual mentioned in the messages.
posted by threeturtles at 7:44 PM on September 19, 2017


Your state has an employment commission, and in almost every state their investment is in employees rather than employers. Harassment doesn't have to be "sexual", unprofessional behavior is cause for termination in every right to work state and most others, and frankly this person should lawyer the hell up before end of day tomorrow and document/screenshot everything prepared to take it to social media if they don't have relief within 48 hours.

Lawyer up. There are free resources nearly everywhere in the US for this.
posted by Lyn Never at 7:49 PM on September 19, 2017 [13 favorites]


What does your employee handbook say? (Seriously).

There's some helpful, plain language overview of Texas harassment law on This law firm's website.

Take gender out of the equation for a moment. One employee is threatening and harassing another. Presumably, since this is a law firm that litigates harassment claims, using what you've described, they would happily take on the case of the female employee you mention.

In general, if someone is behaving like this and management knows/knew about it and did nothing, they are definitely opening themselves up to a costly lawsuit. This is why HR departments exist. Not to protect people from ever experiencing this kind of behavior because it's wrong, but to protect people from experiencing it so they can't sue the company and cost them money.

It does sound like in Texas (from like, three minutes of my cursory googling, so take that for all that's worth), there is no law specifically protecting general humans from this behavior, but the fact that the person receiving this treatment is a.) female and b.) not actually even responsible for what the person is mad about, I'm pretty sure a competent lawyer could draw a pretty quick and easy line to discrimination based on sex.

Do you have an HR department where you work? They should know about this.

You should also ask them for a refresher on their harassment policy.
posted by pazazygeek at 7:57 PM on September 19, 2017 [7 favorites]


If the harassing employee has ever said anything to their victim about their gender, sexual orientation, race, or other protected characteristics/group memberships, then it won't matter that the content of the emails conveniently elides those or they appear to be irrelevant.
posted by bilabial at 7:59 PM on September 19, 2017 [3 favorites]


The EEOC provides protection based on protected classes, just because this is not an EEOC matter does not mean it's not illegal or fireable. If the immediate supervisor hasn't acted I would in this order:
1. Screenshot and save all messages somewhere safe. A couple places.
2. Email screenshots to the immediate supervisor stating that these have been received and per the earlier conversation nothing has been done. Summarise the number of total messages received and the timeframe (ie over the past months I have received 14 similar messages to my personal phone, some of which were sent outside of work hours when I was at home etc). Obviously this is just a template and you should be 100% truthful. Emphasise that the messages are not work related as the matter at hand is not the recepients responsibility and state that they do not know why they are receiving these, feel threatened and afraid of the sender and request that it stop immediately (or whatever is true).
3. Are they going to a personal phone? Request the supervisor direct the sender and other colleagues never to contact the recepient on personal number.
4. Wait until the next message comes then forward to the supervisors supervisor with a screenshot of the newest message. If that doesn't put a stop to it and you get another one forward that one to Director of Personnel, supervisor, supervisor's boss and their boss or in a small company the owner. Meanwhile talk to your state's department of labor and possibly a lawyer.
5. Watch everyone get fired.
posted by fshgrl at 8:22 PM on September 19, 2017 [4 favorites]


The person receiving these messages should only be taking advice from their attorney, because that's how serious this is.
posted by jbenben at 8:32 PM on September 19, 2017 [14 favorites]


Has the person ever made any comments that relate to protected characteristics*? You said that you feel like this relates to her being female. Can you put your finger on why? Does he have a pattern of threatening women but not men? Did all of this start after she refused an advance?

(* A lawyer might even argue that "moron" is a term related to perceived (dis)ability, especially if many of the other insults relate to perceived mental ability.)

I would definitely look for the employer's anti-harassment policy and follow the complaint procedures it outlines. It will generally provide an alternative to talking to one's supervisor because part of its purpose is to protect people from harassment by their supervisors.
posted by salvia at 8:38 PM on September 19, 2017


It's also pretty clear that this behavior violates the corporate policies.

This is the bit that matters, more than strict letter of the law. If the harasser is violating corporate policy, then the manager probably is, too, and as a representative of the company is opening them up to a potential lawsuit. Depending on how the handbook/policies are worded, this could be breach of contract.
THE CONTRACTUAL EFFECT OF SEXUAL HARASSMENT POLICIES
A sexual harassment policy, undisclaimed and containing mandatory language, may constitute a contract that will be difficult to disclaim.

How Can a Sexual Harassment Policy Have Contractual Status?

Few cases hold sexual harassment or other EEO policies to be contracts. The usual reason that an EEO policy is not considered a contract is that it contains guidelines rather than rules, language of aspiration rather than promise. That may not be the result with regard to sexual harassment policies. These policies often contain:

Mandatory language;

  • A clear promise of a prompt investigation in response to a complaint of harassment;
  • A clear promise of non-retaliation for reporting suspected harassment; and
  • A clear requirement that employees report sexual harassment under the procedures set forth in the policy. Plaintiffs' attorneys are now arguing with greater success that such policies constitute contracts.
IANAL. But if this were my company, where those sorts of promises and requirements apply to all forms of harassment, the higher-ups would be pissed at the manager for exposing them to risk like this, and would want to know about it. (And Legal would be going out of their minds that this hadn't immediately been kicked over to them.)
posted by current resident at 9:03 PM on September 19, 2017 [1 favorite]


Is there no HR?
posted by Toddles at 9:33 PM on September 19, 2017 [1 favorite]


"Harassment based on gender" does not at all need to mean "involves gender-based insults." Proving it's gender-based harassment can be harder without specifically gender-based terms, but (1) if anyone can prove the antagonist has any history of being harsh to women but not to men in similar situations, or (2) if he ever used the word "bitch" in the emails... that's enough to lay a solid case, which puts the company at risk of liability.

If he's vile enough in the emails, you may have missed gendered terms that were less awful than some of the other insults. ("Put on your big-girl panties" ... "stupid bitch" ... reference to PMSing ... etc.)

He would no doubt claim that he's not insulting her because she's female, but because she's stupid, incompetent, etc. It then becomes the prosecution's job to point out that either (1) he doesn't insult similarly untalented men, or (2) for some reason, it's always and only women he thinks are incapable of doing their jobs.

If you have the pull to go higher up and complain to HR, do so, and point out that the company is at risk of a serious lawsuit. Even without gender bias, allowing one employee to make a workplace miserable for another is a lawsuit in the making. It may not qualify for EEOC protection, but harassment is still against the law even when it's not based on a protected category.

She could get a restraining order against him, and the employer would be required to find accommodations that make that work.
posted by ErisLordFreedom at 9:51 PM on September 19, 2017 [2 favorites]


Response by poster: Thanks everyone. So theoretically, if they were to say "well we talked to him and he won't do it again" but that was it, what then? If he does it again, obviously she would be able to take it to them or HR or whoever, but if he stops but they still have to work together...that still seems rife with liability for them to me. Yes/no/maybe?

Obviously YANAL/ML.

Also, having read the messages, this dude does not seem stable at all, so the whole thing is concerning. (Also to give you an indication of how ridiculous this is, she's been doing her job for two years, he's been in his three months. That's part of why I think this may be fundamentally about her gender.)

And yes, messages on her personal phone, at 4AM demanding a reply, etc.

I specifically read them looking for the word "bitch" and gender/sexual words because I was looking for legal stuff and was surprised not to find any. But I don't think I saw all of them, so.
posted by threeturtles at 10:15 PM on September 19, 2017 [1 favorite]


She should speak to a lawyer and if advised by them to HR because HR's job is to protect the company, not her. If her line manager does not feel this is an issue that speaks to wider dysfunction/ workplace cultural or political problems or extreme incompetence. All of that leaves her vulnerable.
posted by koahiatamadl at 10:24 PM on September 19, 2017 [11 favorites]


I'd be looking into getting a restraining order if I were her. (And I would be talking to a lawyer about suing your company because if I found out his manager knew about it but did nothing I'd be furious.) I'd be labouring that point to management.

She may be able to claim bullying and discrimination and hold your company responsible. Whether she makes or wins a case or not is not the point, its the risk that needs addressing.
posted by BAKERSFIELD! at 10:31 PM on September 19, 2017 [6 favorites]


Response by poster: TBH I think the likelihood is she might just quit rather than do anything else, but yanno, I'd rather see everyone else get fucked than her.
posted by threeturtles at 10:42 PM on September 19, 2017


If he's calling her at home at 4am I'd go to the police and at least talk to them. They can be useless or fairly helpful. She shouldn't have to quit her job over this, the company has hired a mentally ill person and need to do something about this, like now. But it depends on the job- if she's closing down a restaurant at midnight alone with this guy? fuck that. If it's in a regular office setting and they never have to be alone together, maybe. But I'd sit management down and lay out the conditions: not working together on anything, never being asked to be alone together etc. Make them read every message and make it very clear you think the guy is a fucking liability. And you can bring a lawyer or spouse for support to the meeting, why not.
posted by fshgrl at 11:15 PM on September 19, 2017 [6 favorites]


If she quits because of the harassment and management's insufficient response, it will not necessarily absolve the company, but it also may not help her resume.

The overall point is that you and she should stop trying to DIY this and getting Internet predictions, especially given the erratic and disturbing behavior of her harasser. She absolutely should see an employment lawyer who does employee-side representation in Texas and contact the police. Representation may be on a contingency basis, i.e., she need not walk into a lawyer's office with funds.

IAAL, IANYL, IANHL.
posted by LadyInWaiting at 4:02 AM on September 20, 2017 [13 favorites]


There's certainly a liability risk if this unstable dude escalates his alarming behavior at some point. If he's reprimanded but otherwise allowed continuing access to his victim, he may well find another way to take it out on her. There's a risk that he becomes physically violent and the company ends up on the wrong end of a negligence lawsuit.

Also, less directly, there will be consequences if his victim is forced to continue working with this guy because no way is she going to be able to put in her best work under those circumstances. Maybe he'll stop the overt, foul-mouthed, on-the-record bullying if asked to stop by management, but you bet your ass he won't stop thinking that shit and bullies have a million other subtle and not-so-subtle ways of making their victims' lives living hell, especially in a work context.

Even if he doesn't do any of that shit, she's going to have to look at him every day and try to pretend that things are all normal and hunky-dory now that management has given him a slap on the wrist. She'll be in a totally untenable situation, her morale and performance will suffer, and she'll probably eventually leave the company. If your company cares at all about the quality of its employees' work, they will make sure these two are permanently separated even if for some unfathomable reason they are dead-set on retaining this toxic shitheel. Any negative consequences of that separation (such as people being uprooted from their existing projects and assigned to a different team) must fall on the bully, not the victim.
posted by Anticipation Of A New Lover's Arrival, The at 6:55 AM on September 20, 2017 [2 favorites]


Don't get caught up in trying to inexpertly evaluate the legalities here. This is a situation in which she should report everything in writing, and management should intervene. If she is not satisfied by the intervention or lack of it, she should escalate, or contact an attorney.

If she feels unsafe, she could contact police in addition to these steps.
posted by kapers at 7:23 AM on September 20, 2017 [4 favorites]


Goodness. This is like the first half of a Lifetime movie.

She should be documenting everything, going to the police, asking for a restraining order (that keeps HIM away from the office, not her!), going to HR to report both this guy AND her supervisor for refusing to take this seriously and act (WTF on that???). Time to scorch the earth.
posted by CoffeeHikeNapWine at 7:54 AM on September 20, 2017


If quitting is a possible reaction, what does she have to lose by going above the head(s) of the people who have refused to get involved? Either way, she is out of a job for something that is not her fault. Lawyer, lawyer, lawyer.
posted by soelo at 9:22 AM on September 20, 2017 [2 favorites]


Seconding that she needs to document EVERYTHING. Not just screenshots of texts and emails. Any verbal exchanges should be documented too, with as much context (date, time, location, topic, etc.) as possible, a la Comey's memos to himself post-Oval Office meetings. If she has access to any logs (like phone bills showing his 4 AM calls) she should keep copies cross-referenced with the actual calls or texts. And this log needs to go as far back as possible and include as much of their communication as possible.

I was once peripherally involved on a harassment case for which we created a spreadsheet to document every encounter between the plaintiff and defendant. There were columns for date/time, nature of encounter (in-person, phone, text, email, etc.), and the actual text of the comments, plus cross references to supporting documentation (e.g., this text is saved as '9_20_screenshot.') I realize this sounds like a ridiculous amount of work, but HR will respond more readily to something like this as evidence of a pattern of bad behavior. Depending on how competent HR is (and how interested they are in retaining her competency over this creep's), he'll either be dealt with more firmly or she'll find herself on a Performance Improvement Plan.

She may also wish to contact the EEOC. Any lawyer she meets with will probably recommend it anyway. Contacting them doesn't mean she needs to file a complaint; she can try to talk to someone at a field office and see if they can answer any questions. I am on Team Consult a Lawyer though, and possibly the cops.
posted by Fish, fish, are you doing your duty? at 4:12 PM on September 20, 2017


And yes, messages on her personal phone, at 4AM demanding a reply, etc.

Harassment. Started at work, continuing into her home. This guy's a stalker, and he needs to be reported as such. Lawyer up! He is asking for a big wack with the legal stick, and the company that's ignoring this is next in line.
posted by BlueHorse at 9:05 PM on September 20, 2017 [1 favorite]


Response by poster: Thanks everyone. I've passed along the advice and resources.

It's one of those things where your immediate reaction is "this dude needs to be fired and maybe arrested" and then multiple people write it off as no big deal so you go..."am I horribly naive?" So as usual Mefi is a good gutcheck, plus none of the people involved really understood the law regarding protected class, etc, so thanks for that.
posted by threeturtles at 9:54 PM on September 20, 2017


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