Media is awash with claims of sexual harassment by people from all walks of life – including movie moguls to legislators. Some allegations are egregious and reprehensible and border on the criminal. Many involve behavior that happened years ago, while some allege more recent occurrences. Staggering settlements have been paid to harassment victims.
What if allegations arise at your workplace? Does your company provide a clear path when harassment is alleged?
Protection against sexual harassment begins with an effective policy. It is critical that it describe the behaviors that constitute sexual harassment, who the policy applies to, avenues for reporting, and potential consequences, to name a few. The Equal Employment Opportunity Commission (EEOC) defines the prohibited behaviors. Harassment in the workplace becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Harassment does not require physical touching or words – vulgar pictures or lewd sounds can suffice. Even physical presence is not required in this age of electronic mail, which can easily become offensive.
The policy must give the victim a choice of reporting avenues. If the harasser is a victim’s supervisor, don’t require a report to the supervisor. Victims should be able to report to other individuals or managers or any member of Human Resources. The intent is to create a safe haven for sharing this intimidating and unnerving information. Ultimately, all reports should end up in Human Resources. Most importantly, the workforce must be aware of the policy, its provisions, and how it applies to them.
Re-read your harassment policy. If you were the victim of or witness to harassment, would you know what steps to take? If not, it’s time to revise the policy.
Keep your workforce informed. New employees should be introduced to and receive a copy of your company’s sexual harassment policy during initial orientation. Employers should train the entire workforce periodically, particularly if an incident of harassment has occurred. Make sure your employees know and understand that the company’s policy also applies to visitors, vendors, temporary workers, and others who are lawfully on the premises.
Take extra steps to train those identified in the policy as someone to report to so that they know their responsibilities:
- Someone receiving information about questionable behaviors need not analyze the situation or determine if the behavior is in violation of policy – his/her role is to report potential harassment to Human Resources as quickly as possible.
- Prohibit employees from attempting their own investigation.
- A strong policy and thorough training provides employees with the skills to take action rather than just understand the concepts of legal liability. That, in turn, will help protect the company.
Effective Investigative Practices
Investigations can be complicated, especially in a “he said, she said” situation. If your company doesn’t have a standardized process for investigating such incidents, engage legal counsel for proper guidance. The company’s policy will come into play and the investigation needs to be broad and deep enough to find all relevant facts.
At a minimum, interview both parties and co-workers, if necessary to get the full story. Remind each interviewee to keep the information confidential and that they cannot be punished for giving information in good faith – it is those who receive such information and do nothing with it who can expose the company to liability. Depending on circumstances, it may be appropriate to separate the two employees during the investigation. Take care, however, to do so with impunity or the victim may claim retaliation – e.g., “I reported the behavior and the company moved me to a less desirable job/location, leaving my abuser in his or her regular location.” Legal counsel should help make challenging decisions.
Make sure to take action. With the assistance of counsel, your company can take appropriate action based on the information gathered in the investigation. It is not always necessary to terminate parties, yet at times, that is the only path to limit liability.
It’s an unfortunate fact that other members of the department may be aware of the investigation. Morale may suffer. A suddenly empty desk is a clear sign that someone has been terminated. Remind your employees that, should any of them become involved in such a situation, confidentiality – insofar as necessary to do a proper investigation – will be granted to them, just as it was in their coworker’s situation.
Effective policies, training, and investigations help to shield your company against harassment and provide a mechanism by which employees can report very personal information and be treated with respect. This makes it less likely that the employee feels hurt or neglected by the employer and seeks retribution from it.
Cathy M. Jackson is a consultant with Foundations Human Resources Consulting in Lexington, Kentucky, a wholly-owned subsidiary of Fisher Phillips labor and employment law firm. Cathy can be contacted at 859-286-1100 or firstname.lastname@example.org.