7 Workplace Sins That Could Land You In Court

If you think your organization is immune from workplace misconduct, think again. One in three women between the ages of 18-34 say they’ve been sexually harassed in the workplace. Moreover, many workers (40% to 60% in one study) say they’ve experienced racial or ethnic harassment. Last year alone, the U.S. Equal Employment Opportunity Commission received a whopping 92,000 charges of discrimination, nearly one-third of which included workplace harassment.

Not only can misconduct destroy employee morale, but it threatens your bottom line. Companies that fail to foster a culture of respect put themselves at risk of lawsuits totaling hundreds of thousands of dollars. But what exactly is workplace misconduct, and what are the red flags? In a nutshell, workplace misconduct is any bad behavior that breeds a hostile work environment. The misconduct can itself be a legal violation. But it can also be an infringement of company policy, or simply behavior that’s personally offensive. If left unchecked, workplace misconduct can quickly escalate, threatening both your company’s reputation and the positive day-to-day culture you’ve worked hard to create.

Prevent employee misconduct. See “Five Tips for Eliminating Workplace Misconduct.”

While workplace misconduct can manifest itself in many ways, here are seven common forms that everyone in your organization should be on the lookout for:

1. Sexual harassment – Unwelcome sexual advances, communication, and behavior are all forms of sexual harassment. Sexual harassment can be blatant such as when a male supervisor tells his female employee, “I want to see you in shorter skirts or I’m going to fire you.” But it can also be less obvious such as when a co-worker repeatedly asks her peer out on a date, or a male employee calls all the female employees, “Honey.”

2. Retaliation – Retaliatory behavior is when an employer takes adverse action against workers for participating in a protected activity, such as filing a harassment or safety complaint. For example, it’s retaliatory for a supervisor to fire an employee or cut her pay after she reports his sexual advances to HR. It’s also retaliatory if an employer allows harassing behavior, such as workers avoiding and gossiping about their peer after he complains about their off-color jokes.

3. Bullying – One of the most pervasive sins of workplace misconduct is bullying — or abusive conduct that’s either threatening, humiliating, or intimidating. Just like bullying on the playground, workplace bullying is mentally or physically taxing. Being shouted at, sworn at, or humiliated in front of others are all forms of bullying. So, too, is being unfairly criticized or blamed. Workplace bullying can also involve being set up for failure, excessive monitoring, or being given unrealistic deadlines.

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4. Unwelcome behavior – Workplace misconduct often entails actions that are unwelcome or aren’t approved of by the employee. For example, consider a new Hispanic employee who tells everyone to call him “Brown Joe.” If a few weeks later he complains that a co-worker has been calling him “that brown dude,” it can suddenly be unwelcome based on the intent of the commenter, and very likely his Hispanic co-workers are offended, even if he isn’t.

5. Severe or pervasive actions –While a racial slur or inappropriate touching is immediately severe, most misconduct is more subtle and becomes severe after it’s repeated over time. Think of a supervisor who always tells her employee, “If you can’t get your lazy ass in here on time, I’m going to fire you!” Or how about a series of comments like, “Hey old man, learn to drive a cell phone.” Not only are these repeated comments demoralizing, but they create an opportunity for discrimination claims.

6. Behavior that interferes with work – Workplace misconduct can occur off the job if the conduct comes back and affects an employee’s work. Imagine a female co-worker who posts a picture of herself in a bikini on her Facebook page. If her male co-worker replies with a comment on her page saying how “hot” she looks, it could make her uncomfortable, interfering with her ability to collaborate with him on work-related activities.

7. Behavior that a reasonable person would find offensive – In general, if actions occur that the average person would find offensive, it likely falls in the realm of misconduct. Think about a worker who finds crass language highly offensive and inappropriate. The question is not whether this person is offended by swear words, but if the average person dropped in his shoes is offended. When assessing reasonableness, think about the comment or action being run on the evening news or said in front of a family member. If you cringe at all, it’s probably not suitable for the workplace either.

Jodi Slavik is an employment attorney at Vigilant and provides legal counsel to West Coast businesses on employment issues, including training of HR professionals, managers, supervisors, and employees on a range of liability and leadership issues.