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Does a Co-op or Condo Need a Harassment Policy? Absolutely!

January 10, 2018

By Andrew P. Brucker

Introduction

One cannot open a newspaper or listen to the news without hearing the latest reports of harassment.  And although harassment can take many forms, as later discussed, the law is clear:  harassment in the workplace is considered a form of discrimination, and is illegal.  The harassment may be a violation of federal, state and even local laws, and the financial ramifications to an employer can be devastating.  Therefore, every employer should make it clear to its employees that such behavior will not be tolerated.

A cooperative corporation or a condominium is an employer, and the building is the workplace for a number of Staff members.  But a cooperative corporation or a condominium is very unique, as it is not just a workplace:  it is a complex microcosm.  Some people live there as owners, some may live there as renters, with no real proprietary interest in the building.  There are a number of people who voluntarily work there (e.g. Board members) while others actually are employed by the cooperative corporation or the condominium.  Some people just temporarily work there as an employee of a third party (e.g. a contractor’s employee), while others work there full time as an employee of a third party (e.g. the Manager).

There are so many combinations and permutations of employees, residents, workers and supervisors that there is often the potential for disagreements, conflicts, inappropriate words and actions, and worse, bad blood.  There is always the possibility that actions and words may reach the level of harassment.  When there is harassment, there is a danger that the cooperative corporation or condominium may be held liable for the actions of its employees or Board members (or others working for the cooperative corporation or condominium) particularly if it has been complacent, or worse, encouraged such behavior.  The question therefore that must be answered is whether the cooperative corporation or the condominium discouraged this sort of behavior, and how was such behavior handled?

The best way to establish a zero tolerance policy in regard to harassment is to create a written policy.  It must clearly state that harassment will not be tolerated.  If a corporation has no written policy in regard to harassment which has been distributed to all those working or living in the building, the degree of scrutiny in regard to the liability of the corporation or condominium is much higher. In addition, if not been done, the corporation may not have available valuable arguments that it acted reasonably, took all possible action to prevent and correct harassing behavior, and therefore should not be held responsible for the actions of an employee, owner, Board member, or third party. While not a bar to claims or liability, a written policy that prohibits harassment and includes an effective complaint procedure, which has been distributed to all employees (and others at the building) and implemented and enforced consistently, provides the corporation with arguments and defenses against liability for the actions if such actions are prohibited and denounced as unacceptable in a policy.

Identifying the Parties

We have only touched upon the number of parties that might be involved in the “workplace” at the cooperative corporation or condominium.  In order to fully appreciate the possible parties involved in a harassment situation, we are outlining all of the parties (though we have only listed “cooperative” and “shareholders,” this also applies to “condominium” and “condo unit owners”).

Shareholders are those people who own stock in the cooperative corporation.  They may or may not be living in the cooperative.

Tenants are those who are living in the cooperative.  They may or may not be a Shareholder.

Management refers to the company who manages the cooperative.  They are hired by the Board, and work with the Board, and especially the President.

Manager is the person who is assigned by Management to manage the cooperative.  Typically has a very strong working relationship with the President.

Board of Directors (Board), consisting of Directors, who are each elected by the Shareholders to operate the cooperative, including set policies, hiring Staff, vendors, contracts (all with the assistance of Management and the Manager).

Director is a person elected by the Shareholders to be a member of the Board of Directors.

Super is the superintendent, who is an employee of the cooperative, but who takes direction from the Manager (and Management), although the Board often gives direction to the Super.

Porter (and Handyman) is an employee of the cooperative, who takes direction from the Super.

Doorman is an employee of the cooperative.

Staff refers to all employees of the cooperative (i.e. the Super, the Porter and the Doorman).

The relationships are complicated, and consist of every combination involving the above people (and entities).  The relationships are further complicated by the policies, customs, and long standing traditions of each cooperative.

Examples of Harassment

Perhaps most common harassment complaints involve the Staff.  One Porter is being bullied by another.  For example, one Porter may harass the other with comments questioning his sexuality.  Or the harassment may be based upon his race.  But we have also seen a Super who just does not like one of the Porters, and who ridicules him constantly.  The harassment might also take the form of preferential treatment.  The Super might, for example, give tasks to one Porter which are much tougher than the tasks given to the other Porter.  So in one case, there is trouble between two “equal” employees.  In the other case, involving the Super, we have harassment by a supervisor of  his/her direct report.

Due to the uniqueness of cooperatives and condominiums, we have seen a Director (who believes that they have totally authority over the Staff, which is not true) berate and belittle a Staff member.  Since the Director is part of the Board that makes decisions on hiring and firing Staff, this is very much an employee/employer harassment issue.

Likewise, any belligerent acts by the Manager toward Staff is considered an employee/employer harassment issue, since the Manager is, in effect, the agent of the employer, and thus is the “boss” of the employee.

Interestingly, if there is animosity between a Director and the Manager, although there is no true employer/employee relationship (since the Board has hired the Management company as an independent contractor, not the Manager directly), there is little doubt that any hostile or inappropriate acts taking place in the workplace would be considered employment harassment, and the penalties and liabilities would be the same as actual harassment by an employer.

One interesting relationship which exists is the Shareholder with the Staff member.  Though there is certainly no direct relationship, since the corporation is the employer, it would be logical to assume that the courts would be very sympathetic to the Staff member if harassment took place

Finally, though not technically harassment, inappropriate relationships may be problematic.  For example, if the President of the cooperative was sleeping with a Doorman, this could end up being very awkward for all parties involved.  Though these are two consenting adults, it is clearly wrong, since there is an employer-employee relationship.  The President certainly is in a position of power (since the Board decides who to fire, to whom to give bonuses, etc.), and any such relationship in which this exists is problematic.

Harassment

The illegal activities that we call “harassment” include a long list of inappropriate behavior.  It includes verbal harassment, which includes offensive or unwelcome comments in regard to race, color, religion, age, appearance, sexual orientation, national origin, disability, etc.  Perhaps the most common form of harassment is “bullying.”

Harassment would also include non-verbal harassment, which would include the distribution or display of any material that ridicules, denigrates, insults, belittles or shows disrespect towards an individual or a group because of the above characteristics or traits.

Sexual harassment is a form of harassment.  Sexual harassment occurs when unsolicited and unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature is made explicitly or implicitly a condition of employment; or is used as a basis for an employment decision (e.g. raises, promotions, etc.); or unreasonably interferes with an employee’s performance or creates a hostile or offensive environment.  This includes verbiage of a sexual nature, the display or distribution of sexual materials, or inappropriate and unconsented touching.  The verbiage of a sexual nature may include lewd remarks, jokes, innuendos, or simply inappropriate comments.

Adopting a Policy

Every cooperative corporation and condominium should adopt a harassment policy and should consider providing training to residents, Board members, and employees regarding the elements of the policy.  This is necessary for three reasons.  First, it will put every employee, Manager, Director, resident and every other person at the building on notice that harassment of any type will not be tolerated.  Second, it will outline the procedure that must be followed by employees who believe they have been subject to harassment (or that they have witnessed harassment), and in the event there is an incident or a complaint in regard to harassment, confirm that the corporation will investigate the complaint and take any appropriate remedial action.  And finally, an effective policy that has been implemented and enforced consistently may provide the cooperative corporation or condominium with defenses to claims that the Board has turned a blind eye to this issue and that the Board has in some way allowed a hostile workplace to exist.  The cooperative and condominium should also consider regular training for all employees (and particularly for supervisors, Managers and even Board members) so it is clear what harassment means, that it will not be tolerated, that the corporation (or condominium) encourages employees who believe they have been harassed (or that they have witnessed harassment) to make complaints, and what will happen if harassment takes place.  A discussion between the Board and its counsel is highly suggested, especially in light of the current atmosphere.

To view a PDF version of this memorandum, please click here.