The issue of sexual harassment has received a lot of public attention recently as news stories have thrust it into the forefront of our social narrative. However, sexual harassment is still not clearly understood by many people, including some business owners and managers.
This article is intended as a general guide to help businesses better understand sexual harassment in the workplace, take steps to prevent it and properly respond to allegations of sexual harassment.
What sexual harassment looks like
Sexual harassment can take many forms. Perhaps the most readily recognized form is the “quid pro quo” version of sexual harassment, which includes unwanted sexual advances or requests where:
Submission to such conduct or communication is either explicitly or implicitly made a term or condition of an individual’s employment; or
Submission to or rejection of such conduct or communication by an individual is used as a basis for employment decisions affecting such individual.
Quid pro quo sexual harassment occurs when, for example, a promotion, a pay raise or a coveted assignment is offered by a supervisor in exchange for something of a sexual nature (e.g., physical contact, sexual activity or a date) or when a “tangible employment action” (e.g., a demotion, pay cut or termination) is taken or threatened if the victim refuses the perpetrator’s advances.
Sexual harassment can also take the form of other unwelcome conduct or communication that has the purpose or effect of unreasonably interfering with an individual’s work performance, or creates and/or perpetuates an intimidating, hostile or offensive work environment. This is called “hostile work environment” sexual harassment. This type of conduct or communication sometimes takes the form of sexual advances or requests for sexual favors (not made conditions of employment), verbal abuse of a sexual nature, unwanted touching, leering, sexual gestures, a display of sexually suggestive objects or images, sexually explicit or offensive jokes, stories, cartoons, nicknames, slurs, epithets and other communications of a sexual nature.
Moreover, as noted by the Equal Employment Opportunity Commission (EEOC):
The victim, as well as the harasser, may be a woman or a man. The victim does not have to be of the opposite sex.
The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker or a non-employee.
The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser’s conduct must be unwelcome.
In other words, whether the victim is a man or a woman; whether the harasser is the head of the company or a barista in the lobby coffee shop; whether the complaining party was the direct target or just a witness; if the conduct made the person uncomfortable and was not welcomed by them, it may be sexual harassment.
One additional item worth noting: even if a potential victim or witness does not raise an issue about the inappropriate behavior in the moment, it can still be considered sexual harassment. No matter how long after the incident an individual reports it, that complaint should be taken seriously. As illustrated by current events, there are often legitimate reasons for delayed complaints.
Steps businesses should take to foster a compliant workplace
Business owners and managers should strive to create a workplace culture where harassment of any kind is not tolerated. It is important to have a qualified, HR professional or attorney to help you create policies and procedures for a safe and compliant work environment.
All employers should work with their HR representative on the following well before an incident even has a chance to happen (meaning, as soon as you start hiring for your business):
1) Develop a written policy about harassment in the workplace
Your policy should describe what sexual harassment is and should communicate to your employees that this behavior will not be tolerated. Your policy should assure employees that allegations of sexual harassment in the workplace will be promptly and thoroughly investigated with action taken as appropriate--up to and including termination of the harasser’s employment. Complaint procedures should be clear so that employees and managers understand expectations and the process that will result in case of an incident. Be sure that your policy is drafted in compliance with any applicable federal, state and local laws. For example, California’s Fair Employment and Housing Act requires specific content in employers’ anti-harassment policies.
Best practices tip: Consider making your policy stricter than the law. For example, while the law recognizes “hostile work environment” sexual harassment only where the unwelcome conduct unreasonably interferes with an individual’s work performance or creates and/or perpetuates an intimidating, hostile or offensive work environment (which involves a “reasonable person” standard and a “severe or pervasive” analysis), your policy could prohibit any sexual harassment that is personally offensive, intimidating or hostile, or that interferes with work performance. In adopting a policy that is stricter than the law, you can send a zero tolerance message, address conduct that otherwise might not rise to the level of legally-recognized harassment, simplify the issues for all involved and acknowledge policy violations that do not equate to legal violations.
2) Communicate with employees
Once you have developed your policy, it’s important to communicate the policy to your employees. Your policy should be given to employees during the onboarding process after they are hired, when an employee becomes a people manager, when the materials in the policy are updated and otherwise at a minimum of an annual basis. Employees should be required to acknowledge, with a signature, that they have received the policy. This acknowledgement of receipt should be kept in their personnel file.
It is not enough to provide your employees with a written policy against sexual harassment and assume they will be aware of their role in creating a harassment-free workplace. Training is required in many states and a best practice even when not required. Again, your HR service provider can be helpful with providing compliant in-person or via online training for all employees.
Emphasize the role leadership has in combatting harassment
It is hard to say enough about how important it is that everyone--from the business owner to middle managers and on down to every single employee--contributes to a culture where harassment of any kind is not tolerated. Tone at the top of the organization is of paramount importance. It’s also important to take the time to really train all managers on the need to bring every incident to the attention of HR and senior leadership so that a prompt and thorough investigation can be performed.
What to do if an employee reports possible sexual harassment
All claims of sexual harassment in the workplace should be taken seriously, and investigated promptly and thoroughly by a qualified investigator. If you are not a trained investigator or employment attorney, your role upon receiving such a report should be limited to:
Listening to the employee and letting them know you truly appreciate them bringing forward their concerns.
Letting them know that you are going to reach out to your HR representative immediately and that they will take control of the company’s response. This lets the employee know you are taking the situation seriously and that it will be handled appropriately.
Immediately contacting your HR representative for guidance.
Staying out of the way of the investigator assigned to conduct the investigation.
After the investigation is concluded, participating (as requested) in discussions about how to move forward.
Helping to implement corrective action, if corrective action is warranted.
The ins and outs of investigation practice (and how to close out an investigation and match corrective action, if any is warranted, to the circumstances of any given situation) are highly technical topics beyond the scope of this post. They are also good reasons for small and midsize businesses to get help with their HR needs from a service provider like TriNet.
This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.
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