On Wednesday’s St. Louis on the Air, host Don Marsh discussed the issues surrounding harassment in the workplace, whether it’s based on sex, religion or disability.
Joining him was Jessica Liss, J.D., a managing principal of Jackson Lewis, P.C. Liss works with employers about workplace discrimination issues.
Workplace harassment in the state of Missouri has reentered the spotlight after complaints came forth against the Missouri Department of Corrections, where female employees detailed cases of sexual harassment that were not dealt with appropriately.
“The issues rising out of the department are from where to report complaints and how those reports are being handled,” Liss said.
$4 million has been awarded to victims who were harassed or feared retaliation while employed by the Missouri Department of Corrections.
On Wednesday’s program, we detailed what constitutes harassment of any sort, what employees should do in the case of harassment and what employers are responsible for.
Liss also weighed in on the proposed changes in Missouri’s discrimination law that will make it harder for employees to prove discrimination by employers.
Here are some takeaways from the conversation.
What is workplace harassment?
“In short, employers are not permitted to discriminate against employees or job applicants because of certain immutable traits: race, religion, gender and other protected traits,” Liss said. “Those are protected under Title VII under the Civil Rights Act. Harassment can relate to those protected traits. We most commonly associate harassment with sexual harassment: unwelcome verbal or physical contact of a sexual nature that is severe and pervasive and affects working conditions or creates a hostile work environment.”
Harassment and discrimination can be perpetuated by coworkers, supervisors in management positions or outside vendors.
“Harassment is unwelcome conduct. It can be more than one act, it is generally severe and pervasive, and it can impact working conditions,” Liss said.
What is the most common form of harassment?
Liss said this question was a hard one to answer, but that she sees a lot of litigation related to supervisors engaging in harassment or retaliation.
“When that occurs, the employer can be held strictly liable for the actions of their supervisors,” Liss said.
Who determines what is harassment?
“Regrettably, people are treated unfairly and with disrespect in the workplace every day,” Liss said. “That’s not necessarily unlawful but the question is: when does the behavior rise to the level of unlawful conduct? It is the person’s individual perception of whether or not the conduct is unlawful.”
What should you do if you think you are being harassed?
“It is important for the employees to report misconduct to a supervisor or to those in a management or leadership position,” Liss said. “One of the cardinal requisites of employers is to have strict policies in place that prohibit harassment or discrimination. Employees should have a clear understanding and roadmap for how to report harassment and discrimination.”
If your workplace has no HR department, Liss recommends taking the complaint to a member of the organization’s leadership team.
What is an employer’s duty in cases of harassment?
“Employers are obligated to take reasonable steps to prevent harassment and required to take prompt, corrective action when harassment occurs,” Liss said. “We want employees to understand who to complain to, how to complain, what the contents of that complaint should be and to understand they should not be retaliated against in the event they do come forward.”
How does training play a role in preventing harassment?
“It is important not only to lay out policies and protocols but to train employees and supervisors to prevent and report harassment,” Liss said. “Report on professional behavior and inappropriate conduct, discuss what harassment looks like, and how to ferret out harassment.”
Jokes, signs or cartoons can be seen as harassment and employers should be mindful of that.
“When I train people, I say that if the conduct in question does not propel the mission of the business or workplace then it likely should not be happening,” Liss said.
On a different note, where does Missouri stand in regard to discrimination law?
Missouri legislators are currently weighing changes to Missouri employment law that would include caps on plaintiffs’ awards and reduced protections for whistleblowers. A wording change is also being weighed that would raise the burden of proof in regard to allegations of harassment.
Currently, employees wishing to sue for discrimination must prove that a protected characteristic was a “contributing factor” in termination whereas the new legislation would make it “because of.”
Liss is of the opinion that such a change in the law would be a good one because, currently, she believes the burden of proof to be too low. Federally, the burden of proof is much higher.
“Missouri is considered one of the most lax states in this country in which to bring discrimination lawsuits,” Liss said. “We know most recently that the Missouri Legislature is attempting to take action to repair our reputation and review legislation that would recalibrate standards that one must adhere to before bringing a discrimination lawsuit against an employer.”
The bill is sponsored by Sen. Gary Romine, a Farmington Republican.
This would make it harder for the complaining party (and employee) to try a case of employment discrimination or harassment.
“That’s an opinion of some of the critics,” Liss said. “The interesting thing is that Missouri is one of a very few states that follow contributing factor causation standards. This legislation seeks to align causation and recalibrate issues we see every day and make it consistent with federal court. I don’t believe it will have a chilling effect on plaintiffs coming forward with claims. I believe those claims will continue to be filed and exist and if discrimination occurred, there will be remedies. If these corrections are made by the legislature, it will temper frivolous lawsuits throughout Missouri.”
St. Louis on the Air brings you the stories of St. Louis and the people who live, work and create in our region. St. Louis on the Air host Don Marsh and producers Mary Edwards, Alex Heuer and Kelly Moffitt give you the information you need to make informed decisions and stay in touch with our diverse and vibrant St. Louis region.