Unfortunately, there are times in the workplace that words and gestures are not appropriate or welcome, and which cross a line and put a company at risk of charges of sexual harassment.
Some facts about sexual harassment:
Sexual harassment is actually a type of sex discrimination under the law, and it violates Title VII of the Civil Rights Act of 1964.
Sexual harassment has several components under federal law:
- It must be unwelcome conduct or communication.
- The harassment must be based on the person’s sex.
- The employee must feel that the harassment affected the terms or conditions of their employment.
- While the perpetrator might be someone other than the company’s owner, the victim must prove that the employer was legally responsible for the perpetrator’s actions.
The U.S. Equal Employment Opportunity Commission (EEOC) reports that in 2007 it received 12,510 charges of sexual harassment, 84% of which were filed by women. Of these charges, they resolved 11,592 and recovered $49.9 million in monetary benefits for the charging parties (not including what the lawyers made).
Types of sexual harassment:
Some types of sexual harassment are very obvious. An example of this would be “quid pro quo” harassment, where an employee is forced to submit to sexual advances in order to be promoted or to retain their job. Other types of harassment are more subtle. For example, sexual harassment can take place when a business has an atmosphere of derogatory jokes based on gender, because this creates a hostile environment.
Although 84% of the claims the EEOC received in 2007 were made by women, it’s clear that men can be victims too. It is also possible for the harassment to be “same-sex”. This type of harassment does not have to be homosexual in nature, but simply needs to meet the sexual harassment criteria of being based on sex, being unwanted, and affecting the victim’s employment.
Sexual harassment and employer liability:
Employers are responsible for the actions of their supervisors, and thus have liability under the law. The extent of this liability depends on a variety of factors. One factor is whether there was an employment action taken against the victim. An employer can be subject to strict liability if there is a significant change in a victim’s employment, such as termination or demotion. But if no tangible employment action was taken against the employee, then the employer may have some defense to protect themselves, and this is where prevention comes into play.
An employer’s liability is greatest when the harasser is in a position of authority or supervision. However, the liability exists whenever there is an atmosphere of harassment, whether it stems from coworkers, vendors, or customers.
Employees need to know that harassment will not be tolerated, and written policies should confirm that. The company must follow through whenever they are aware of an atmosphere of harassment, or whenever a complaint has been made.
The importance of anti-harassment policies and complaint systems:
- All companies need to have a strong Anti-Harassment Policy in place, which is clearly communicated to all employees. This policy can be pulled from the Employee Handbook, and all employees should sign an Acknowledgment Form that they have received and reviewed the policy.
- The company also needs to have a comprehensive system in place for employees to communicate their complaints of harassment. The system should provide them with multiple avenues of communication, in the event that the harasser is their supervisor, or a person in a position of authority. Complaints need to be investigated thoroughly and dealt with immediately to protect the company from liability.
- Communication and training are essential elements in your program. In addition to your written policy, which all employees will sign, share this information on a regular basis with all of your employees in meetings. Discuss the atmosphere that you expect in your workplace. Express your strong disapproval of inappropriate behavior and explain the discipline policy for harassment.
Be sure your employees know how to bring forward their complaints and assure them of their right to as much confidentiality as possible, and that they will not experience retaliation for coming forward. Provide your supervisors with the training they need to handle harassment situations and complaints. As always, maintain excellent records of your preventive measures and of any investigations and remediation that take place.
Make sure you’ve got the right insurance:
Another important tool in your business toolkit is insurance. The EEOC tells us that even when an employer undertakes every proper preventive measure, there are no “safe harbors.”
Any company that has employees should invest in an Employment Practices Liability Insurance policy. This insurance provides protection against a wide variety of employment related practices, including sexual harassment, discrimination, wrongful termination, and many other employment related claims.
The best protection is always prevention, but as with everything else, you want to know that in the end, you have the insurance protection you need to cover your company’s assets.
The topic of sexual harassment in the workplace flew to the forefront last year as allegations surfaced about presidential candidate Herman Cain. Regardless of your opinion about his innocence or guilt, his employer, the National Restaurant Association, states they settled with his accusers without admitting to his guilt, which is not an uncommon practice. As business people, we should ask ourselves, could this happen in my business? What lessons can I learn from this?
We need to all review our own internal business practices to be sure that we aren’t vulnerable to sexual harassment claims, and review our insurance to be sure that we’re adequately covered. We all want our employees to be safe, happy, and productive in the workplace. We also want our businesses to be well protected!
Originally published in the Kitsap Peninsula Business Journal.