How to protect your employees and your company against sexual harassment claims

In my last post I highlighted the importance for every employer—both for-profit and nonprofit—to review their sexual harassment policies and practices, in light of recent high-profile scandals.  In this post, we will review the key components that any effective sexual harassment policy must include, so that an employer can reduce and even eliminate its liability.

Recap: two categories of sexual harassment

As discussed in the last post, both federal and state law recognize two categories of illegal sexual harassment:

• Quid pro quo: quid pro quo is a Latin phrase that means “something for something.”  In the area of sexual harassment, it applies to when someone with the authority to make employment decisions such as hiring, firing, promotions, etc., bases such a decision on receiving some manner of sexual favor from the person affected by the decision.
• Hostile work environment: when sexual harassment, whether verbal, physical, visual, or otherwise, and is “severe or pervasive enough to alter the conditions of the victim’s employment and create an abusive working environment”, according to EEOC guidance.

Either type of harassment, if proven by a plaintiff, opens an employer to a range of consequences, including past and future wages; compensatory and punitive damages; reinstatement; possible consent decrees with the U.S. Equal Employment Opportunity Commission to implement policies, training programs and ongoing compliance audits; attorney fees; and damage to reputation.

Tone at the top is key to stopping sexual harassment

 An effective sexual harassment policy does not just address the legal requirements, but starts with the moral and cultural issues.  It is critical for company management to make clear that it will only tolerate a professional, respectful, and safe workplace, and that behaviors that fall short of that standard are unacceptable.  The organization’s culture must encourage and promote this, and culture starts with the behavior modeled by senior management, who must “walk the talk.”  There can be no double standard for senior-level executives and all other employees.  If employees believe, for any reason, that senior management tolerates unprofessional behavior or harassment, they may believe it acceptable to engage in such actions themselves.

Elements of an effective policy

The organization’s written policy must be written in clear, straightforward language—avoid legalese.  It should contain the following elements:

• Clear statement of the standard of behavior expected of all employees, and that sexual (or other kinds) of harassment will not be tolerated
• Definition of sexual harassment, like that given above, but with more detail and specific examples of prohibited conduct
• Procedure for bringing a complaint, which should include several alternative methods for doing so ( for example, report to supervisor, to someone else if the supervisor is the alleged harasser, the human resources director if there is one, or an outside confidential hotline), and encourages employees to come forward
• Make managers, supervisors, and executives responsible for reporting any harassing conduct that they observe
• Statement that the company takes all complaints seriously, and outlining how it will respond to a complaint, including timelines for acknowledging receipt of the complaint
• Statement that the company will treat complaints, inquiries, and investigations confidentially, but make clear that it cannot always keep the complaining person’s identity confidential if it is to investigate the complaint effectively
• Clear statement that no one who brings a complaint in good faith will suffer any form of retaliation, discipline, or intimidation
• Statement that anyone who violates the anti-harassment policy will be subject to discipline, and that such discipline will be tailored to the findings of the investigation (it may be the case the not every violation warrants dismissal of the harasser)
• An acknowledgement by each employee that he has received a copy of the policy and agrees to comply with it

Effective employee training is also critical

It is not enough to distribute a written policy and collect signed acknowledgements.  The policy’s message will only sink in with multiple and varied methods of communication.  Periodic training for employees and managers is important. In addition, under earlier U.S. Supreme Court rulings, a company can reduce its liability if it can demonstrate that it provided training for employees.

Training can take a number of forms, from lectures by trainer, to online modules, to videos showing examples of prohibited conduct.  Studies have shown that live, in-person training is often more effective than online modules or watching videos, as participants can ask questions and are more engaged.

There are many providers of training geared toward both front-line employees and managers and supervisors, who have a greater responsibility to report harassment if they see it. Training is also tailored to the type of workplace (an accounting firm’s training would likely be different from a restaurant’s or a manufacturer’s).

Unfortunately, many studies have shown that such training is often ineffective in lowering the incidence of harassment, or in changing long-held attitudes, but from a strictly legal perspective training is required for a company to be able to reduce its liability if an employee brings a harassment suit.  For that reason, it is important to evaluate the goals of training, and make training just one part of the company’s overall approach to creating and maintaining a respectful, professional, and safe workplace.

If you have questions or would like to discuss your organization’s needs, please contact me by email at mark@spitzlegalcounsel.com or by phone at 720-575-0440.