The “#MeToo” movement has put workplace sexual harassment in the spotlight, with numerous high-profiled resignations and terminations happening on Capitol Hill and in Hollywood. It is only a matter of time until employers see an increase in sexual harassment claims in the workplace.
An October 2017 NBC News/Wall Street Journal poll reported that 48 percent of women working in the United States say they have personally experienced an unwelcome sexual advance or verbal or physical harassment at work. Yet, according to an Equal Employment Opportunity Commission study conducted in 2016, approximately 90 percent of individuals who said they experienced workplace harassment never formally complained about it. As more women speak out, employers can expect more legal action.
Before that legal action hits your business, employers should take the time to re-evaluate how to avoid harassment in their workplaces, starting with a strong corporate culture of professionalism and respect. Sexual harassment claims can be very costly to employers, and can be even more costly in the court of public opinion. Therefore, it is important to know what you can do to be proactive against such claims.
Prevention should be a primary goal for employers in addressing sexual harassment. Harassment prevention ultimately requires changes in attitude and behavior, for which there is no short-term solution, as well as possible changes in workplace policies and procedures. For employers, investing in sexual harassment prevention is not only the right thing to do, it is the smart business choice.
Here are the top 10 ways to minimize the risk for your business, in no particular order:
#1 Have a Good Sexual Harassment Policy
The policy should be in your handbook and reviewed with every employee at the time of hire. The policy should prohibit discrimination and harassment on the basis of race, color, sex, religion, age, national origin, disability, gender identity, sexual orientation, pregnancy, or any other legally protected status under federal, state, or local law. The policy also should define harassment and give some specific examples.
#2 It Starts at the Top
Top management must set the example. If other managers or employees believe, rightly or wrongly, that senior management tolerates harassment, they may be more likely to engage in or allow unprofessional or unlawful conduct in the workplace.
#3 Encourage Employees to Come Forward
Make it clear to your employees that anything they tell you will not affect their career opportunities or used to retaliate against them.
#4 Establish a Multichannel Complaint Process
Employees should be allowed to bring harassment complaints to various members of management and to human resources personnel, not just to one specific individual who may be the alleged harasser. Because many employees fear retaliation, particularly when the alleged perpetrator is a powerful person in the organization, it also is advisable to have a mechanism that allows employees to make anonymous complaints of sexual harassment.
#5 Report Bad Conduct
All employees can be encouraged to speak up if they witness sexual harassment. In some instances, co-workers may be in a position to intervene or redirect an errant employee. In others, co-workers may prefer to report the situation, especially if the offender is a senior employee or high performer. Training employees how to respond to and report these situations can be invaluable.
#6 Ensure Prompt, Thorough and Independent Review of Complaints.
All harassment complaints, no matter when or against whom they are raised, should be promptly investigated. Employers should ensure that those responsible for looking into these types of complaints have experience conducting such investigations and possess the necessary independence and authority to do so in an impartial and thorough manner.
#7 Enforce Your Policy
If your investigation confirms sexual harassment, notify the involved parties and decide on disciplinary action. Depending on the harasser’s work record and the gravity of the charge, you may decide on an oral or written warning, a deferral of a raise or promotion, a demotion, suspension or discharge. Be fair in your judgment, and evenly apply your disciplinary actions. Make sure you have all the necessary documentation to back up any disciplinary action.
#8 Train Your Employees
Conduct anti-sexual harassment training for your employees every one or two years. The U.S. Equal Employment Opportunity Commissions has recommended that the training be done live, in person
#9 Cultivate a culture where sexual harassment is not welcomed or tolerated
Everyone has a different sense of humor, but there is a time and place for everything. Remind employees that others may find sexual jokes to be crude and unpleasant, instead of comical. If an employee makes an inappropriate comment or joke, be sure to tell them so. If it’s in a group setting, try not to reprimand them publicly, but do so in a manner that the employee knows that it is not welcomed.
#10 Contact Your Attorney
You should ask your attorney to review your policy for completeness and to ensure the policy clearly defines harassment in accordance with federal, state and local employment laws.
If you haven’t looked into your corporate culture in a while, you may need to a refresher course on what constitutes Sexual Harassment. Here’s a 101 course to bring you up to speed.
Types of Sexual Harassment
There are two types of harassment in the workplace: quid pro quo and hostile work environment. Quid pro quo harassment occurs when some type of employment benefit is made contingent on an employee performing sexual favors, or conversely, when an employee is threatened with negative work consequences for refusing to confer sexual favors.
A hostile work environment is an environment that is intimidating or hostile to work in for women or another protected class. It is defined as unwelcome conduct that unreasonably interferes with an individual’s job performance or creates an intimidating, hostile, or offensive working environment for a protected class. The harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. If it is more severe, such as sexual assault, it does not need to be as pervasive. If it is less severe, such as jokes and comments, it must be more pervasive. The conduct must also be unwelcome. In training managers, it is important to recognize and train that what may be welcome to oneself may not be welcome to another, and what may be welcome in one setting may not be welcome in another. Similarly, conduct that was once welcome can be unwelcome and illegal.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
- The harasser’s conduct must be unwelcome.
Examples of Sexual Harassment
Sexual harassment can occur in a variety of situations. These are examples of sexual harassment, not intended to be all-inclusive.
- Unwanted jokes, gestures, offensive words on clothing, and unwelcome comments and repartee that is sexual in nature.
- Touching and any other bodily contact such as scratching or patting a coworker’s back, grabbing an employee around the waist, kissing an employee, hugging an employee, or interfering with an employee’s ability to move.
- Repeated requests for dates or other get-togethers that are turned down or unwanted flirting.
- Transmitting or posting emails or pictures of a sexual or other harassment-related nature.
- Watching pornography or other suggestive material online or on smartphones even if the employee is watching in a private office.
- Displaying sexually suggestive objects, pictures, or posters in the workplace.
- Playing sexually suggestive music.
Should you have any questions about sexual harassment, or would like to schedule a no-charge initial consultation with one of our experienced estate planning attorneys, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800.
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