Prevention and Investigation
By Sarah Zasso, SHRM-SCP, SPHR
According to the National Women’s Law Center, at least 1 in 4 women have experienced sexual harassment in the workplace. According to the EEOC, 70% of targets of harassment do not report the harassment. Women (and men) who have long been silent are now finding their voices.
The latest headlines indicate a change has come and employers need to be prepared for employees to bring concerns forward at a potentially unprecedented rate. Employers should prohibit any type of harassment and create a culture of respect, not only because it is simply the right thing to do, but also because harassment: can cost emotional and physical harm to victims, it is illegal, can cost thousands in legal fees, decrease productivity and morale, and can harm company reputation.
In order to prevent harassment, you must first understand the definition of sexual harassment. Per the EEOC:
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- 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
You should have a comprehensive policy (including discriminatory and sexual harassment) that defines and prohibits harassment. The policy should include a guideline of reporting harassment, as well as a “no-retaliation” policy. Many victims do not report their claims because they fear retaliation. Unfortunately, retaliation is a reality and many victims have reported being fired, demoted, ridiculed, and more after filing claims with management or HR. Your policy should create a culture of “safe reporting” with no fear of retaliation. The policy should also include consequences, up to and including termination, for violation of the Anti-Harassment policy. Note: Inappropriate behavior should not have to meet the legal definition of harassment to be a violation of your policy and there should be content in your policy to reflect as such.
It is critical (from a culture and legal perspective) to have Anti-Harassment training for all employees. I recommend that you conduct anti-harassment training at orientation for all new hires, as well as on an annual basis. This can be achieved by videos, online training, and “Instructor Led” training. I do suggest that the policy be reviewed and discussed in New Hire Orientation, in addition to any video or online training. Your Supervisors/Managers have roles and responsibilities regarding harassment that require a higher-level, separate training. It is encouraged to have Supervisor training conducted by a 3rd party (an HR Consultant, for example) to ensure effectiveness, understanding, and liability.
As I said earlier in the article, it is essential to create a company culture where victims of harassment feel comfortable coming forward to management or HR, without fear. That starts with your policy, but is truly demonstrated in “practice.” Be clear to your employees and managers that retaliation will not be tolerated and follow through with consequences.
Unfortunately, prevention is not 100% effective and there may be harassment allegations* at your company. Per Title VII, harassment is illegal and you are required to investigate harassment complaints. Take all reports of harassment seriously, no matter how small they appear to be, even if they don’t meet the standard of “illegal” harassment. The worst thing that a company can do is disregard a harassment complaint.
A thorough and comprehensive investigation should be conducted, including speaking with the claimant, alleged offender, and any potential witnesses. Allegations must be addressed with urgency and without bias. And, of course, don’t forget to document. It is often recommended that a company hire a 3rd Party (HR Consultant or Employment Law Attorney) to conduct the investigation, to eliminate the perception of bias and to protect the integrity of the investigation. At the end of the investigation, if there was a finding of inappropriate behavior, the alleged employee must be held accountable and the claimant notified.
*An allegation does not necessarily mean guilt. Do not be reactive or assume, investigate.
It Starts at the Top
Leaders (C-Suite, Owners, Supervisors) set the example. Subordinates model their supervisor’s behavior, so it is crucial that leaders follow and enforce the expectations of the Anti-Harassment policy, at all levels.
What is considered Harassment has progressed over time, as our social culture has progressed. The reality of the matter is that behavior that was perceived as acceptable ten (10) years ago may be offensive today. That is why it is critical to educate employees of what is – and isn’t – acceptable behavior in the workplace. Due to lack of awareness, training, enforcement, and fear – this is now a national issue. The good news is that you can change (or reinforce) the culture of your organization.
Note: This is a high-level and brief overview and is not all-inclusive or comprehensive.
How I Can Help
I recently attended a Labor Law Update and the attorney stated, “If you remember nothing from today, remember that preventing Harassment must be a top priority for all employers.” I can help you make this a top priority for your organization: create a policy, conduct in-person training (regionally), lead investigations, and help you create an overall anti-harassment culture. Contact me today at [email protected] to discuss.
This article is for general information purposes only. I am not an attorney; accordingly, the information presented is not legal advice, and is not to be acted on as such.