Are You Prepared to Handle a Sexual Harassment Claim?
Recently, famous Hollywood actresses and actors have been speaking out as victims alleging serious sexual harassment claims against notable stars such as Charlie Sheen, Kevin Spacey, and, of course, executive film producer, Harvey Weinstein. These celebrity claims have encouraged women and men outside of Hollywood to speak up, as well. The “#metoo” campaign has impacted all of social media.
As more and more allegations come out, many employers are asking: “Are we prepared to defend a sexual harassment claim?” The bigger questions should be: “What do we need to do to protect our company and our employees against sexual harassment and how can we prevent it in the first place?”
Let’s be honest, not all workplaces are like Hollywood. By now, most employers in the U.S. have an anti-harassment policy in place that addresses sexual harassment. If you don’t, I would recommend that you do so immediately.
First of all, what is sexual harassment? A lot of people don’t know the answer to this question. Essentially, it’s defined as unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Essentially, there are two forms of sexual harassment: hostile work environment (unwanted, unwelcome, or offensive conduct involving sex), or quid pro quo (something for something). A typical hostile work environment example would be one employee repeatedly asking another employee out on a date despite several refusals, or perhaps an employee giving another employee an unwanted neck massage. Don’t forget, sexual harassment can also come from a non-employee, such as a vendor or a customer. A notable example of quid pro quo would be a manager saying to a subordinate, “Hey, I’ll make sure you get that promotion and pay increase if you’ll sleep with me”.
I could spend all day listing the different scenarios you could face. They are, in fact, limitless. By now, most everyone who reads this blog should have either been through a training session or maybe even conducted training on this topic. If you haven’t done any training or it’s been a long time since you have, that’s a problem. Even if you have a good policy in place, you can’t just assume everyone will read it, understand it, and know what their roles are. Training has got to be a top priority and should be done annually. If you don’t know when the last time was that you had formal trainings, then I would highly recommend putting together a training program ASAP. If you simply don’t have the time or aren’t sure where to begin, the HR professionals at East Coast Risk Management will gladly help you. We can even coordinate and conduct your training efforts for you.
The following list details essential elements that your company should have in place in order to try to prevent sexual harassment and to defend the company if a lawsuit does happen:
1. A Sexual Harassment POLICY: A solid policy has to include reporting requirements. Make sure your policy is clear and concise on what to do for reporting a possible sexual harassment issue. I cannot stress enough the importance of reporting requirements. This needs to include clear instructions to employees on what to do if they are victims or witnesses of sexual harassment. To whom do they report the incident? Be sure not to limit that reporting to one person (i.e., “your supervisor”) in case that person is the problem. You also want to tell them how the investigation process will work. Let them know their statements must be truthful and in good faith and how the results of the findings will be reported. Once you have the right policy in place, train your employees to ensure they understand it. Then follow it consistently. Do not deviate from that policy.
2. Annual TRAINING: You definitely want to train your supervisors and management team on an annual basis. This also holds true for the rest of your employees. Not only do they need to follow your policy, but they also need to be aware of what constitutes sexual harassment. I’m sure you’ve taken the time to review this during orientation, but like your supervisors and management team, your regular employees need training, too. I’ve had several instances when I was investigating sexual harassment allegations when the accused truly didn’t believe they were doing anything wrong. Some employees will feel it’s okay to touch other employees or to provide those mid-afternoon massages. The fact is they may not know they are doing any harm. By providing training you are informing them that their actions may be considered unwelcome or unwanted, and are inappropriate in the workplace, BEFORE they create a potential claim.
3. Proper INVESTIGATIONS: Chances are, not all the accusations that are flying around Hollywood right now will prove to be true. At some point, we’ll probably learn that some were either exaggerated or flat out lying. Why do I say this? Companies may see an increase of complaints simply because of the increased awareness of these allegations in the national news. It is extremely critical to make sure you do a complete, total, and thorough investigation into any claim that comes across your desk. Remember, just because an allegation is made doesn’t necessarily mean the accused is guilty. That is why the accused is called the “alleged” harasser. Make sure to be fair, thorough, and consistent when handling any sexual harassment allegation. It’s also important to instruct your supervisors and management teams how to handle the information gathered during an investigation.
Keep in mind, too, that the punishment should fit the crime. Just because harassment is found, it may not necessarily be a terminable offense. For example, an off-color joke might be corrected by counseling and progressive disciplinary actions. However, for those events that are egregious, immediate termination may be the best option. Depending on the details of the allegation, it may be prudent to suspend the accused harasser until the investigation is complete. Then, if the employee is found guilty, turn the suspension into a termination. If the determination is “not guilty”, reinstate the employee and pay them for the duration of the suspension.
4. No RETALIATION: Your policy must state that there will be no retaliation against any individual who comes forward with a good-faith claim. Should an employee make a good-faith claim of harassment, they need to know that they are safe from any possible repercussions such as a termination, reduction in pay, transfer to a lower position, not being considered for advancement opportunities, etc. More than that, such retaliation is illegal. Companies that are sued for harassment may pay out even larger sums of money in court if they are found to have retaliated against the employee who brought forth the claim. Make sure to address this not only with your supervisors and managers, but also with your regular employees so they know they can make a claim without fear of retaliation.
In case you need more convincing . . . in 2016, more than 91,000 charges were filed for various harassment claims. Of those, 26,000 claims were based upon sex discrimination. Retaliation made up 44.5% or 39,000 claims. This is serious business folks. What was the total payout of these claims? The Equal Employment Opportunity Commission recovered $545 million!
What I’ve provided to you in this article is a blueprint that will help you design and build a successful and meaningful anti-harassment policy, help prevent claims and defend them if one happens. Let us not forget, if you talk the talk by having a policy, you must also walk the walk by enforcing the policy as it is written.
By Jim Spencer