Accusations of harassment have recently flooded the news media. Starting with Harvey Weinstein, well known personalities from the world of entertainment as well as politicians and even the U.S. Olympic women’s gymnastics team physician have been accused of making a variety of unwelcome advances to women and young men. As unsavory as the news stories might be, they all have the benefit of raising awareness of the issue. Are we doing enough to protect each other?
Anti-harassment laws
If you look around, an assortment of protections are in place for those victimized by unwelcome sexual advances, harassment or other threatening conduct. There are statutes offering injunctions and other remedies in some instances, employment laws protecting employees, provisions to protect tenants, and policies in place in other venues not specifically covered by the laws, such as real estate firms and REALTOR® association offices.
In Wisconsin, there are misdemeanor penalties and forfeitures awaiting those who frighten, intimidate, threaten, abuse or harass another person via email or other electronic communications in Wis. Stat. § 947.0125, or by telephone in Wis. Stat. § 947.012. If there is physical conduct or a pattern or course of threatening or harassing conduct involved, the penalties can ratchet up to a felony and criminal penalties per Wis. Stat. § 947.013. Those subjected to harassment that involves physical contact, abuse, sexual assault or stalking or even abuse of a household pet may seek restraining orders and injunctions under Wis. Stat. § 813.125. A tenancy may be terminated if needed to protect a tenant or a tenant’s child from an imminent threat caused by another tenant under Wis. Stat. § 704.16. And Wis. Stat. § 111.36 contains explicit prohibitions for employment discrimination and sexual harassment between an employer and an employee. These various laws offer important protections without a doubt.
The law is fairly well-defined when it comes to employment situations. Real estate firms may have some employees, but the vast majority of firms operate with agents who are independent contractors. There are no specific statutes regarding sexual and other harassment for independent contractor real estate professionals.
Anti-harassment policies
But that is not to say that real estate firms should not all adopt an anti-harassment policy. A firm that has an anti-harassment policy is making a statement that it respects the rights of everyone to enjoy a workplace where sexual and other harassment is not tolerated and that it intends to stand behind that principle. Such polices are good for office morale, promote productivity, enhance retention of agents and other staff, limit any potential firm liability and avoid negative publicity.
The key is to have a strong, written anti-harassment policy that is circulated among all agents and staff. The policy should make it clear that harassment and other inappropriate conduct will not be tolerated, encourage the reporting of harassment, and maintain a non-retaliation policy.
Each firm should strive to prevent and promptly correct any reported harassment.
Harassment in the workplace
Harassment in the workplace is most frequently thought of as sexual harassment. However, harassment may be based on other characteristics such as race, color, creed, ancestry, national origin, age, disability, sex, arrest or conviction record, marital status, sexual orientation or membership in the military reserve.
Harassment is any unwelcome verbal, visual or physical conduct based on one of these characteristics.
Workplace harassment falls under one of two categories: quid pro quo or a hostile work environment. Harassment can occur as a quid pro quo situation where, for instance, a tangible workplace benefit is exchanged for sexual favors. It also can occur as a hostile work environment where the offensive conduct is pervasive and severe. Harassment may be comprised of unwelcome conduct that is intentional or unintentional. It may be sexual advances, slurs, jokes, innuendos, inappropriate gestures, or even posters and signs. Although we most often think of a woman subordinate being harassed by a man in power, harassers can be men or women, co-workers or managers, vendors, service providers, guests and members.
Sexual harassment
“Sexual” harassment includes unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature. There can be verbal conduct such as sexual jokes or insults, comments about a person’s body or sex life, or sexually demeaning comments. This form of harassment may be nonverbal such as gestures, staring or displaying suggestive or degrading materials. Then there is the physical conduct including touching, hugging, kissing, patting, brushing against a person’s body or blocking a person’s movement.
For example, a newly hired machine operator is told by her co-workers that sexual jokes, touching and display of nude posters are just part of factory life and she should try to ignore it. Or a manager tells a worker applying for a promotion that the job would be his if he just “treats her right.” Or a manager demands sexual favors in exchange for a promotion or a raise. Sexual harassment often occurs when there is a disparity of power — not just when men and women work together.
Unless severe, a single incident or a few isolated incidents of offensive behavior will not likely rise to the level of harassment. But a single incident of unwanted touching of a person’s intimate body areas is sufficiently offensive to be defined as sexual harassment. It may also constitute a criminal offense under state “sexual assault” laws.
Conduct is unwelcome when a person does not solicit or invite it and when the person regards the conduct as undesirable or offensive. It is important to note that harassment is in the eye of the beholder. What might be acceptable to one worker might be offensive and unwelcome to another. Thus a “reasonable person” test is applied: Would a reasonable person in the person’s position find the conduct to be so unwelcome or harassing as to create a hostile work environment?
Proactive protection for firms
A firm that wishes to steer clear of legal trouble and liability should exercise reasonable care to prevent and promptly correct any harassment. The firm must make it eminently clear that harassment of any kind will not be tolerated. This may be demonstrated by creating and posting a plain English anti-harassment policy, conducting anti-harassment training, encouraging the reporting of harassment and maintaining a no-nonsense non-retaliation policy. Managers should be trained and ready to implement an impartial, confidential investigation process if a complaint is received.
The centerpiece of these efforts is the implementation of a strong policy explicitly prohibiting harassment. A good anti-harassment policy should include a clear definition of workplace harassment and identify who is covered by the policy. Everyone in the firm should be encouraged to report any harassment, and the policy should include an anti-retaliation statement. The policy should include procedures to follow for reporting harassment, a description of the investigation process and the potential consequences for those engaging in workplace harassment.
The following is the anti-harassment policy appearing in the WRA Office Policy Manual Guide, which certainly presents a good starting place. Firms without an anti-harassment policy would be wise to adopt one immediately. Firms with a policy in place may wish to review and revise their anti-harassment policy, perhaps conferring with legal counsel for other suggestions or improved language. There also are some other sample anti-harassment policies in the resources below.
Harassment (Policy Manual)
Verbal, physical, visual, and sexual harassment are strictly prohibited in all Firm offices and at other meetings or events. Verbal harassment includes jokes and insults based upon race, sex or another protected class category under applicable federal, state or local fair employment law, including age, creed, color, disability, marital status, national origin, ancestry, lawful source of income, sexual orientation, gender identity, arrest or conviction record, or membership in the national guard, state defense force, or any other reserve component of the military forces of the United States or Wisconsin. Physical harassment includes unwelcome touching, grabbing and pinching. Visual harassment includes suggestive pictures, posters, photographs or cartoons, and materials intended to reflect negatively on an individual’s gender, race, national origin, ancestry, sexual preference, or membership in another protected class under fair employment law. Sexual harassment includes unwelcome sexual advances, unwelcome requests for sexual acts or favors, and other unwelcome verbal or physical conduct of a sexual nature, or possession or distribution of sexually explicit materials that have the purpose or effect of unreasonably interfering with an individual’s work performance, creating an intimidating, hostile or offensive working environment, or creating a hostile environment for the conduct of real estate business with clients, customers and others.
If any Associate or any other staff member believes that he or she has been subject to any such harassment, the incident shall be immediately reported to the Firm or a supervising broker. The Firm shall promptly investigate all written complaints. If management is involved in the complaining person’s allegations, then an outside investigator may be retained. A written report will be rendered within 30 days of receipt of the complaint. The identity of the complainant and the individual(s) accused of the harassment will be kept strictly confidential.
Company policy prohibits any retaliation against any person who has complained of harassment, or against any person who participates in this company’s investigation of the complaint. Any Associate found to have engaged in harassment may be subject to termination.
Harassment (Technology Manual)
Use of the information systems for harassment, in any form, will not be tolerated. The information systems are not to be used inappropriately to forward messages or information that will disparage individuals or groups based on their gender, race, national origin or other protected characteristic, or in any manner which might disrupt the work place or damage morale. Accordingly, conduct including, but not limited to offensive comments, jokes/riddles, cartoons, pornography, profanity and offensive messages or information in any form is expressly prohibited.
Any Associate who receives threatening, harassing or improper communications shall immediately report the situation to the Firm.
Resources
Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.