Sexual Harassment and your best protection

All employers are at the risk of a sexual harassment claim being filed with the EEOC, your State Humane Rights Bureau or a sexual harassment lawsuit.
Your sexual harassment policy can easily and efficiently be combined with your anti-harassment policy. Under state and federal laws discrimination against employees on the basis of race, religion, gender, national origin, age, disability and other state or county specific status is not allowed. So combining all these can give you a wider range of protection.
The following States even require sexual harassment policies, training and/or refresher courses for employees.

  • California
  • Colorado
  • Connecticut
  • Florida
  • Massachusetts
  • Maine
  • Rhode Island
  • Vermont

It was estimated in a 2013 article in The Fiscial times that a lawsuit brought against a company for sexual harassment will easily cost $100,000.

In 2011 the EEOC received 11,300 sexual harassment complaints. A sexual harassment complaint with the EEOC requires you to hire a lawyer and defend that complaint, no matter how baseless.
I had a client that terminated a manager for multiple mismanagement issues. We were in the process of documenting these problems and giving the employee a chance to correct the issues. When the issues were not corrected and just before termination the employee told the company and I that she was pregnant. We terminated her for the mismanagement issues knowing that an EEOC complaint would be filed for discrimination. In this claim she said that we, the human resources consultants, harassed her about being pregnant in a performance review two months before she was even pregnant. Although this complaint was clearly fabricated the company still was required to defend themselves and prove they did not fire her for being pregnant. This requires hiring a lawyer, which can be costly.

Of the 11,300 sexual harassment complaints filed with the EEOC the average settlement complaint cost was $37,000 per claim.

The first thing that would be looked at if you receive a formal charge of sexual harassment or discrimination with the EEOC, your State Humane Rights Bureau, or a sexual harassment lawsuit is what you as a company did to prevent or stop the harassment or discrimination.

So what is the best way to protect yourself from sexual harassment claims or lawsuits? To start each company should have a well-defined sexual harassment policy.

Your policy should have the following components:

  • A clear statement that the company is committed to providing a workplace free from sexual harassment.
  • A clear definition of what sexual harassment is.
  • Provide example of what can be construed as sexual harassment.
  • That employees will not be disciplined or suffer adverse job consequences for truthful and honest complaints.
  • That any employee who engages in unwelcome sexual conduct is subject to discipline, up to and including discharge.
  • Requires supervisors and managers to immediately report suspected misconduct.
  • Spelling out that vendors, customers or other employees can perpetrate sexual harassment.
  • State that all reports will be kept as confidential as possible with in the ability to do an investigation on the allegations.

Clear guidelines on who an employee can report sexual harassment complaints to. And that it is every employee’s responsibility to report any behavior either experienced or observed. Encourage all employees (not just victims of harassment) to report incidents of unwelcome sexual conduct.

I would like to discuss a few of the items on this list.

Who can sexual harass an employee: One area of sexual harassment that companies overlook is customer or vendor harassment of employees. Employers are required to protect employees from sexual harassment from managers as well as anyone they come in to contact with while at work. Reminding managers and employees that these incidents are also considered sexual harassment that need to be dealt with is not a bad idea.

Your policy and training should state that if an employee witnesses a fellow employee in an uncomfortable situation with a customer, the employee should politely ask the fellow employee if they could step away from the customer and confirm that the employee is comfortable with the customer.

Confidentiality: The biggest detriment to an employee handbook is if the company does not follow what it writes in its OWN employee handbook. Lawyers love to pick at those things. So do not promise total confidentiality because this can be problematic when dealing with a complaint and could tie your hands in an investigation.

Reporting: I believe one of the most critical components of the policy is who an employee can report a complaint to. You need to make sure there is no road block that an employee can claim they could not pass. Consider these road blocks when detailing who the employee can report a problem to:

  • A husband and wife owned company.
  • A company where the only executive employees are male or female.
  • The company executives are good friends with the employee being accused.

One way to eliminate these hurdle is to pick an outside human resources firm to be listed as an impartial third party able to take complaints.

Your sexual harassment policy is the first line of defense of a sexual harassment claim or lawsuit. So now that you have your new policy, you need to ensure that you communicate it to your employees.

For existing employees some courts view the changing or adding of a policy to a handbook as a change in conditions of employment after hire. So the best way to introduce your new policy is to hand out the policy seven days before holding a company meeting. Let the employees know that at this meeting they will have the opportunity to discuss the policy and ask any questions they might have.

When discussing the sexual harassment policy give a brief overview of what the policy contains. For example –

This policy is to remind employees that the company does not condone or approve sexual harassment or discrimination. Sexual harassment and discrimination can come from a fellow coworker, supervisor, customer or vendor. Employees are encouraged to report any observed sexual harassment or discrimination to a member of management or the policy list a third party able to take reports. All reports will be taken as confidentially as possible.

Information given in a meeting should always address general terms and never individual circumstances if the policy is being handed out because of an incident at the company.

Make sure you don’t forget to have employees sign that they were given the current policy and had an opportunity to bring up any issues they had about the policy.

After handing out your policy your next line would be training your managers how to take a sexual harassment complaint and provide training periodic training to your employees.