How to Respond to Harassment by a Phantom Perpetrator

June 1, 2009

As all employers know, workplace harassment can be an illegal form of discrimination. A recent lawsuit filed by a former Columbia University Teachers College professor rekindles the question of what you should do when harassment is perpetrated by unknown persons. You must take prompt remedial action when put on notice of harassment, but what can and should you do when the harasser is unknown?

Facts
Madonna Constantine is African American. Beginning in 2006, she was investigated for multiple counts of plagiarism. In October 2007, she found a noose hanging on her office doorknob. Her office was in a secured area, so access was limited to someone with a Teachers College identification card. Columbia terminated her in 2008. In October 2008, she filed a claim in New York state court alleging that her termination was “arbitrary, capricious, and unreasonable.” That suit was dismissed.

In April 2009, Constantine received a picture of a noose in the mail, and she has now filed a $200 million lawsuit against Columbia that includes allegations of defamation and that she was subjected to an “academic lynching.” Although the case isn’t based on workplace harassment in the traditional sense, it once again raises the question of how you should respond to acts by unknown perpetrators.

Harassment laws
Federal, Wisconsin, and local ordinances collectively bar virtually any kind of workplace harassment against employees, including harassment based on sex, sexual orientation, race, age, disability, and national origin. You should have a poster prominently displayed in the workplace putting employees on notice that no form of harassment will be tolerated. Employees should have multiple avenues to complain to management about harassment. Also, you should provide them with copies of the harassment policy, and they should acknowledge receipt of the policy. A sample policy is available from the Wisconsin Department of Workforce Development (DWD).

As discussed in the sample DWD policy, harassment generally means persistent and unwelcome conduct or actions based on any of the factors mentioned above. Sexual harassment is one type of harassment and includes unwelcome sexual advances, unwelcome physical contact of a sexual nature, or unwelcome verbal or physical conduct of a sexual nature.

Harassment on any basis (e.g., race, sex, age, or disability) may exist whenever:

  1. Submission to harassing conduct is made a term or condition of an individual’s employment (either explicitly or implicitly);
  2. Submission to or rejection of such conduct is used as the basis for an employment decision affecting an individual; or
  3. The conduct interferes with an employee’s work or creates an intimidating, hostile, or offensive work environment

Prompt remedial measures
When must you take prompt remedial action in response to harassment allegations? In the normal case, the alleged perpetrator and victim as well as other witnesses should be interviewed. The DWD has an investigation protocol for such instances.

Investigating the unknown perpetrator presents even more serious challenges. The unknown perpetrator can pick and choose when, how, and whom to attack. For example, he may leave graffiti in bathrooms or may send anonymous e-mails, which are virtually untraceable if sent from a public computer. The perpetrator may be in a position not to engage in certain acts of harassment if he believes someone else is watching.

Depending on the severity and length of the harassment, one potential solution to solving the mystery may be posting a sizeable award for anyone who provides information that leads to the harasser’s identity. You should also post explicit written warnings that anyone who participated with or aided the harasser will be terminated immediately.

Other measures may include reviewing work schedules to determine who is working and not working at the time of the event and interviewing several of them. You also may want to investigate the potential that the harassment may have been from a former employee.

In many instances, law enforcement should be contacted. The use of a private investigator may be helpful. If the harassment persists, you may consider having all employees attend diversity training or other programs. In union settings, you should be aware that certain surveillance measures, such as workplace cameras, may be the subject of mandatory bargaining.

You should take measures to ensure that employees exposed to harassing literature, graffiti, e-mails, or photos don’t share the materials with other employees — thus unknowingly potentially furthering the harassment. Victims should be advised to exercise caution with respect to what mail or e-mails they review or which e-mail attachments they open. It may be a good idea for employees to be escorted to their cars if the harassment is of a violent nature.

Bottom line
Workplace harassment is a serious and difficult problem for employers even when the harasser is known. However, when the harasser chooses to remain anonymous, you are faced with many more hurdles to overcome to ensure a safe work environment.

In the end, if a perpetrator wants to remain anonymous, absent bad luck on his part, he may never be caught. In other words, even when you take all reasonable action, the harassment may continue. However, while you are required only to take prompt remedial action, that action must address the peculiarities of dealing with the phantom perpetrator.

Finally, special care should be taken to assist and protect the victims. They should be advised of the difficulties of such an investigation as well as what precautions to take to minimize future incidents.

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For more information about "How to Respond to Harassment by a Phantom Perpetrator," contact Saul C. Glazer at sglazer@axley.com or 608.260.2473.