This article was contributed by Catharine Morisset of the labor and employment law firm Fisher Phillips in Seattle.
With heightened attention on workplace sexual harassment, employers are renewing their commitment to preventing and effectively addressing such unlawful conduct. Despite recent headlines, the challenge is not new. Over the past 20 years, sex-based workplace discrimination charges have remained one of the most common employee-asserted claims before the federal Equal Employment Opportunity Commission (EEOC) -- second only to race.
There are two basic types of actionable sexual harassment under federal, state, or local anti-discrimination laws.
- The first is the well-known example of a male supervisor’s demand for sexual favors of a female subordinate in exchange for a tangible employment action, like a promotion, or a threat of mistreatment, like termination.
- The second is a hostile work environment. This can be verbal or physical harassment of a sexual nature, but also offensive remarks or jokes about a person’s sex, including gender-based stereotypes.
Today, businesses must be prepared before it is too late. And that is why a good workplace anti-harassment prevention plan will prohibit broader misconduct, rather than just focus on what is unlawful.
When considering proactive steps for sexual harassment prevention, businesses often overlook the impact of workplace culture. A culture that provides opportunity for unlawful harassment can unintentionally - and easily-arise. Recognizing red flags for your specific workplace is the first step towards real prevention. Common examples include:
- Situations where employees with more power than their coworkers may exploit the lower-status employees
- Work environments – even just a single department – where the majority of the employees are the same gender can often lead to a culture of sexual harassment
- Individuals in their first jobs can be less aware of what is appropriate workplace behavior and legal standards
- What may start out as a fun way to bond with coworkers can open the door to sexual harassment claims. Alcohol-impaired judgment can lead to inappropriate behavior
A meaningful prevention program saves money in the long term – both in legal fees and loss of internal productivity due to time spent dealing with claims.
Some key measures include:
1. Diversify Your Workforce
Sexual harassment claims are more prevalent when the workforce lacks diversity, whether it be predominantly male or female.
2. Update Your Anti-Harassment and Anti-Retaliation Policies
Employers policies should include examples of what behavior will not be tolerated, a procedure to report harassment, a statement that all claims of harassment will be taken seriously and investigated promptly. Employers also should have an anti-retaliation policy.
3. Communicate Your Policies Often and In Multiple Ways
Conveying the employer’s anti-harassment and anti-retaliation policies frequently and in a variety of forms – from trainings to company memoranda – underscores the policy’s importance and ensures employees know how to report harassment and retaliation.
4. Have Several Ways for an Employee to Report Harassment.
As a best practice, employers should offer employees different reporting methods, such as an email address, a telephone number, or at least two different individuals who can accept reports.
5. Special Training for Managers and Supervisors
The law sets out special duties for supervisors and different legal standards for supervisor harassment. In Washington, supervisors are also personally liable for unlawful sexual harassment. A good training will explain these duties and differences.
6. Live! Training
As the EEOC has opined, live training from a qualified trainer is far more effective than videos or reading a document.
7. Conduct Prompt, Thorough, and Objective Investigations
Where harassment is found, issue proportionate discipline. Employees are more likely to report sexual harassment when they feel the employer takes sexual claims seriously. One way is to meet your duty to investigate claims fully and issue discipline promptly. Employers should not wait to conduct investigations.
8. Consistent Discipline
Discipline should be issued consistently where claims of sexual harassment are substantiated, regardless of whether the harasser is the “superstar” employee or a new hire. Failing to do so can open the door to legal claims and can also send a message that your anti-harassment policies do not apply to certain levels of employee.
The prudent employer will recognize that it is simply a matter of when – not if – potential sexual harassment will occur. Rather than be concerned about an increase in claims due to increased public dialogue about workplace harassment, employers should use this opportunity to update their prevention program and renew their commitment to a professional workplace.
Companies in every industry are wrestling with how to respond to allegations of workplace harassment involving the C-Suite and star employees. Join me and Aaron Blank, CEO of The Fearey Group on Tuesday, March 13 for a webinar to learn about the impact of allegations, how to identify steps the company leadership can take to manage and respond to a PR crisis and best practices to proactively minimize the occurrence of allegations in the future. You can register online here for the webcast. If you miss the webinar, you can check-out a short podcast here offering some tips on the subject.
Disclaimer: This article is not legal advice. If you need legal advice, please consult your employment law attorney.