Workplace Harassment and the Absent Victim

Victims of harassment can include employees who are not present as well as witnesses to the harassing behavior

Posted by Dawn Lomer in Discrimination, Harassment, Human Resources on March 27th, 2012

A Saskatchewan court has upheld the dismissal of a supervisor for harassment because he was disrespectful to women. The interesting part of his dismissal, though, was that he didn’t actually make inappropriate comments directly to them but, rather, about them.

The supervisor in question used foul language and inappropriate comments to refer to three women employees at a pipeline construction firm in front of other employees, including employees who reported to him as their supervisor. The courts found just cause for dismissal because the employee’s disrespectful behavior created a hostile work environment and his behavior amounted to “sexual and/or personal harassment”.

 Second-Hand Harassment

Is this result indicative of things to come and could it happen in the US? “I think theoretically you could have a harassment claim based on comments that were made completely behind your back,” says Robin Shea, a partner at employment law firm Constangy Brooks and Smith, LLP.

FREE Investigation Report Template

Prepare thorough, consistent investigation reports with our free report template.

Download Template

Whether or not harassment happens in the presence of the victim, it has the power to make the work environment hostile for the subject. “I think it can also cause the witnesses to lose respect for the victim or undermine the victim’s authority, in this case a male manager making sexual comments about the three women who worked in the office,” says Shea. “That could make things difficult for them in dealing with these witnesses; it could have an undermining effect on the person being talked about.”

Secondary Effects

And then there’s the effect on the employees who witness the harassing conduct. They may also experience a hostile work environment, even though they are not the subjects of the comments.

And if they happen to be in the same category as the victim, witnesses may feel that the comments also apply to them, explains Shea.  “They’ll be on their guard more; they may feel actually harassed by what’s being done to the other person,” she says.

“If an African-American employee sees a supervisor make a racist comment about another African-American employee, the witness employee will think ‘that’s the way he thinks about all of us’, and rightfully so,” says Shea.

Motive for Discrimination

If a supervisor is making comments about an employee behind his or her back and later lets the employee go in a reduction in force, a discrimination claim may be around the corner.  An employee who finds out about derogatory comments can use those comments as evidence of a discriminatory motive, says Shea. “And then it doesn’t have to be severe or pervasive, it can be one single comment… Something like that wouldn’t be enough to give rise to a harassment claim but it would be very damning evidence of discrimination.”

This applies to comments on social media sites as well. “We really have to be careful of what we post on social media,” says Shea. “I’ve always been concerned about – just as an example – somebody publicly commenting that they don’t think affirmative action is a good idea, or that they think a woman’s place is in the home. Would that be harassment? Probably not; it’s not made directly to the person and it’s not severe or pervasive. But again, we still have the type of comment that could be used as evidence of a discriminatory motive on the part of the person who said it.”

Dawn Lomer
Dawn Lomer

Managing Editor

Dawn Lomer is the managing editor at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.