Recent news stories have shed a brighter light on the very real problem of sexual harassment in the workplace. Failing to properly address sexual harassment creates an unsafe workplace and exposes the employer to substantial liability. There is nothing new about this issue. Liability under Title VII of the Civil Rights Act has existed for more than thirty years. These recent headlines simply speak to the unfortunate reality that too many workplaces fail to properly address the problem. It is imperative that employers acquire the tools needed to protect their employees and themselves.
Sexual harassment encompasses a wide variety of conduct, including unwelcome sexual advances and requests for sexual acts or favors. It also includes other verbal or physical conduct of a harassing nature when:
1. submission to such conduct is made either explicitly or implicitly a term or condition of the individual’s employment;
2. submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such an individual; or
3. such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.
A series of separate incidents can constitute sexual harassment even when the incidents, considered separately, would not be sufficient to make out a legal claim. Employees are prohibited from harassing coworkers, whether or not the incidents occur in the workplace or during working hours. Employers must also ensure that employees are not subjected to sexual harassment from third parties, such as vendors and customers.
A safe work environment requires open communication and this begins with a well-drafted policy. A good policy informs employees of the types of conduct that your business will not tolerate. It goes on to explain to employees that everyone has an obligation to report sexual harassment. If improper things are being said or done, then the policy should inform the offended employee that she or he is required to report the misconduct. Supervisors must be reminded that they have an affirmative duty to report what they observe, even though no one raises a complaint and even when the supervisor is not responsible for the employees involved in the observed behavior. The policy should provide multiple avenues for communicating concerns about harassment and should state that the company will not tolerate any retaliation against those who report concerns or participate in the investigation of such matters.
Simply publishing a well-drafted policy is not enough. Employers must act on the policy and take all complaints of alleged harassment seriously. Supervisors should always report employee concerns. Long gone are the days when an employee could share a concern with their supervisor but then ask that they not consider it a formal charge. If it is broached, supervisors must understand that they have an obligation to report the issue.
Management must deal expeditiously with allegations of sexual harassment. At least one person should be designated to investigate harassment complaints. He or she should receive training on how to properly investigate such a charge. This designation and training should occur before an allegation has been raised. Many employers compound their problems by delaying the investigation. Time is of the essence, and failing to plan in advance can lead to an impression—often incorrect—that your company is not taking the allegations seriously.
Training is a key component to reinforcing that your company takes the issue seriously. Whether the training is done by an outsider or someone within your organization, the fact that you are devoting time to this issue reflects that you take it seriously. Training moves the principles of the written policy to a more down to earth discussion. It reinforces what is not permissible, how it will be handled if it arises, and the consequences of not following the policy. Invariably, you encounter a handful of employees who ridicule training programs, and sexual harassment training is often the vehicle for such comments. Ignore them. Training sends a message to everyone, including those who deride it. It reinforces the policy and reduces the chance that harassment will occur. It also assists you if, despite good faith efforts, you receive a charge of sexual harassment.
Each company is different and has access to different resources; nevertheless, it is critical that every company develop a comprehensive sexual harassment policy and work to make that policy a part of their work environment. Ferguson, Schetelich & Ballew regularly works with employers to promote a safe workplace by crafting such policies. It also works with clients to properly investigate harassment complaints and respond to charges of discrimination when they arise.