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Sexual harassment

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- Posted: September 6, 2018
By Jared Nusbaum

Every workplace should have a sexual harassment policy to discourage workplace misconduct and address problematic behavior. A clear sexual harassment policy puts employees on notice about unacceptable behavior and provides a process to follow when misconduct is alleged. For U.S. businesses with at least 15 employees for at least 20 weeks in a year, companies are required to comply with Title VII of the Civil Rights Act of 1964, which prohibits workplace sexual harassment. Your state likely has similar laws. Canada, too, has taken a strong stance against sexual harassment. Understand your federal and provincial regulations.

Define sexual harassment
Don’t leave it to employee interpretation. The best place to start is the federal regulatory definition implementing Title VII. The U.S. Code of Federal Regulations defines harassment to include unwelcome sexual advances, statements, requests for favors or touching, as well as imposing those behaviors as a condition of employment and creating a hostile or offensive workplace through those behaviors. Many states have human rights statutes that mirror federal Title VII protections. These will probably also define harassment. The EEOC provides additional guidance at www.eeoc.gov/laws/types/sexual_harassment.cfm
 
Establish procedures 
There’s no single harassment policy that employers must have but it should outline a procedure for reporting, investigating and correcting sexual harassment. However, under Title VII, employer liability generally depends on whether the employer knew or should have known about the harassment, and whether they respond immediately. For this reason, harassment policies generally require employees to immediately report harassment to someone within the organization who can investigate.

Following are some tips for establishing a sexual harassment policy:

Stop the harassment. The employee should tell the harasser to stop. Harassment is commonly identified as “unwelcome” behavior, but it’s not always clear whether behavior was “unwelcome.” A request to stop gives the harasser a clear warning.

Report the incident. The employee should report the conduct to someone. For larger companies with a tiered management structure, this is usually the complainant’s supervisor, the HR director or an executive. For smaller companies, this may mean simply reporting to the president or the person in charge of daily operations. However, it’s wise to provide more than one person that a complainant can report to, because it may be that one of those designated people is the harasser. You may want to state that employees can file reports even if the harassment they observe is directed at someone else.

Make the report timely. The employee’s report should be made as soon as possible. The earlier a report occurs, the quicker an employer can react to prevent harassment from becoming a pattern of behavior. 

Begin an investigation. The employer should investigate the alleged conduct immediately. Employer reaction time is critical in determining employer liability. The policy should clarify what an investigation might entail, such as interviews with the complainant, the alleged harasser and any witnesses. While confidentiality is important to many complainants, it’s hard to conduct an effective investigation without revealing (or implying) the complainant’s identity. Instead, it’s probably best to state that reports will be handled as confidentially as possible. You may also want to state that during the investigation, the employer will take all reasonable steps to protect the complainant from continuing harassment (for example, crew reassignments, providing discretionary leave, etc.).

Report any further harassment. Employees should be able to follow up if the harassment continues. The employee should know what steps to take if the unwelcome behavior doesn’t stop. Supervisors or other management staff may also want to affirmatively check in to ensure that the employee doesn’t feel that they’re suffering any retaliation for reporting harassment.

Ensure no retaliation policy. Clarify that there will be no retaliation for reporting harassment or assisting an investigation. Retaliation may mean demotion or termination - but it can also be subtle, such as hostile attitudes. Your policy should indicate that retaliation will not be tolerated. This includes retaliation against people who participate in an investigation, not just the complainant.

Establish accountability. Clarify that discipline may result based on the findings in the investigation. A robust harassment policy doesn’t just investigate conduct — it holds employees accountable. This means that if the investigation supports a finding that sexual harassment occurred, the harasser will face consequences. It also means that there are consequences for intentionally falsely reporting harassment.

Enforce the policy
For the policy to work, employees need to believe their reports will actually be addressed. Follow through on the process you’ve outlined and any protections you’ve offered, such as confidentiality. If you receive and investigate a complaint, you may want to collect input from the employees about the process.

Build familiarity with the policy
Employees don’t always read or remember everything in the employee handbook. Employee trainings or other workplace reminders may help prevent incidents.
Let’s hope that you never need to put this policy into action - but it’s better to be safe than sorry should a complaint arise. 

Jump start solutions

  • Clearly identify terms, which will leave no room for interpretation.
  • Establish a policy, educate your team on the details and enforce it. 
  • Research federal and state laws to identify your responsibilities and liability as an employer with regard to sexual harassment.
  • Policy should include repercussions for retaliation and false reporting.

Resource: The EEOC provides several resources for small businesses to comply with federal laws on sexual harassment. Visit www.eeoc.gov/laws/types/sexual_harassment_guidance.cfm.

Jared Nusbaum is an attorney with the law firm of Zlimen & McGuiness, PLLC in St. Paul, MN. His practice areas include employment law, small business law, litigation, and bankruptcy. Email him at jnusbaum@zmattorneys.com.

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