Workplace sexual harassment creates significant legal exposure for employers (as well as management/supervisory employees) and it can also have a devastating effect on the health and well being of employees. Sexual Harassment is covered under Title VII of the Civil Rights Act of 1964 for federal purposes, as well as various state and local statutes. Unlike other claims brought under Title VII which have a threshold amount of at least 15 covered employees, a claim for sexual harassment can be brought if an employer has as few as 1 covered employee. Employers can be liable for sexual harassment unless they have taken all reasonable steps to prevent and redress the harassment. With that in mind, we set out 6 practical steps employers can take to effectively prevent and manage sexual harassment in the workplace.
STEP 1: UNDERSTAND IT
If an employer doesn’t understand the problem, he or she will never be in a position to limit their liability. In its simplest terms, sexual harassment is conduct of a sexual nature that is unwelcome in a situation where a reasonable person would have understood that the other person would be intimidated, offended or humiliated. Examples can include:
- Suggestive or derogatory remarks or jokes;
- Unwelcome sexual advances;
- Harassing phone calls, e-mails, texts, social media posts;
- Spreading rumors of a sexual nature;
- Unwanted sexual drawings, or caricatures;
- Unwanted questions about someone’s personal life;
- Unnecessary physical contact; and
- Staring or leering in a sexual manner.
An employer needs to understand that sexual harassment can arise from a single, isolated instance or can occur as a result of a pattern or series of incidents. It can take place within the workplace environment, but can also occur outside of work (at a client’s site or at a work related function). It can involve employees, or even outside vendors. All that is required is some relative nexus with the employee’s employment.
STEP 2: TALK ABOUT IT
Assuming everyone must know what constitutes out of bounds sexual misconduct is a huge mistake! On addition to clearly written policies, employers need to be sure everyone is crystal clear on what constitutes acceptable conduct in the workplace. The most effective way to ensure this is to require ALL employees to attend regular training sessions which:
- Explains clearly what is meant by sexual harassment in the workplace;
- Provides real life examples;
- Identifies steps an employee can take if they feel subject to unwanted sexual harassment;
STEP 3: DEFINE RELATIONSHIPS IN THE WORKPLACE POLICIES
Sexual harassment guidelines are not designed to prevent employees from entering into consensual personal relationships at work and employers should not interfere in these situations. However, by turning a blind eye, employers risk that the consensual personal relationship can end with allegations of inappropriate behavior and create legal exposure. Therefore, employers should consider what their policy is on relationships within the workplace. Should there be a policy of reporting such relationships? If the relationship is between two direct reports, putting n place an alternative reporting system may be prudent. It would also serve to reduce the risk of claims from other employees that the relationship has impacted negative upon them.
STEP 4: KEEP YOUR EYES OPEN FOR WARNING SIGNS
Keep your ears to the ground and have an understanding of how employees interact in the office, on-site and outside the workplace. If there is even the slightest hint of inappropriate office behavior of a sexual nature, don’t wait for someone to complain about it. Don’t ignore conduct that is all “good fun.”
STEP 5: CONSIDER A CONTACTS OFFICER IN THE WORKPLACE
Employers should designate specific individuals or officers to whom an employee can turn to if he of she feels sexually harassed. This individual is there to support the person raising the claim of improper sexual contact and explore what options are available. In order for an employer to effectively limit liability, there must be an effective mechanism for employees to bring forward claims without fear of retaliation.
STEP 6: CONDUCT A THOROUGH INVESTIGATION
It is important that all allegations of improper sexual conduct be thoroughly investigated. An employer that does not investigate, and where warranted, take appropriate remedial measure will not be able to limit their liability. Employers should consider whether there is a need for the investigation to be conducted by a legal professional, and if so, engage their lawyers accordingly. Any disciplinary action should only be taken in response to matters that can be substantiated. A poorly handled investigation may lead to further legal claims, including unfair dismissal claims from the alleged perpetrator. If there are matters to be further communicated to members of management or teams must be handled with the appropriate degree of confidentiality.
With over 30 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the employment laws. Call Bill Boznos today at (630) 375-1958 or contact us through our website.
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