The list of high-profile men accused of sexual harassment in the workplace continues to grow, with figures in media, politics, entertainment, Wall Street and virtually every other industry in America coming under increased scrutiny. At a time when disclosures of sexual misconduct arrive every day with the morning news, companies across the United States are being forced to recognize their own legal duty to protect workers from sexual harassment.
Too often, companies have discharge this duty with nothing more than a written policy that never moves beyond the pages of an employee handbook distributed to new hires.
Preventing sexual harassment – and investigating complaints of harassment that have already occurred – requires a more comprehensive approach, establishing clear and enforceable boundaries and ensuring that all employees are reminded of the policies in place.
Most important, a company’s employees must believe that management is serious about a harassment-free workplace. If employees do not believe that management has bought into the process, then no amount of training will help.
“A company that does not have people designated to hear sexual harassment complaints does not have a real policy in place.”
Creating a Comprehensive Policy
The policy should start with a general definition of sexual harassment, similar to the definition used by the Equal Employment Opportunity Commission (EEOC): harassment of a person (an applicant or employee) because of that person’s sex, including unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
I also recommend that the policy include examples that demonstrate what exactly constitutes sexual harassment. This is crucial. Many harassers do not think of themselves as harassers, and regard their own behavior as playful, harmless or otherwise acceptable. By providing specific examples, a company clearly shows behaviors that are not normal, should not be accepted and in fact violate company policy.
Workshops with trained experts on sexual harassment are another useful method for demonstrating the difference between right and wrong in the workplace, and have the additional benefit of involving employees in the process so they can be educated.
A company needs to keep employees aware of its sexual harassment policies by requiring periodic training, perhaps every year, to remind workers about the rules, particularly if there are any changes.
Encouraging Employees to Report Sexual Harassment
Reporting has unfortunately been very difficult for the victims of sexual harassment. Victims often feel frightened about the consequences of reporting inappropriate behavior, especially when it is a direct boss or another higher-ranking employee at fault. This results in a fear of retaliation.
First, the company must create a reporting process that protects the victims of sexual harassment, allowing them to discuss what happened with a person trained in sexual harassment policies who will listen to and evaluate the complaint. A company that does not have people designated to hear sexual harassment complaints does not have a real policy in place. It forces an employee to feel unprotected and potentially put in a position where the harasser can influence the outcome of the complaint.
Second, to allow investigations to proceed and avoid unlawful conduct, the company cannot tolerate any form of harassment. In case after case, companies have been found liable for retaliation, even when the initial complaint of sexual harassment itself would not likely have resulted in a successful lawsuit.
Investigating the Complaint
Once a complaint has been filed, whether with the human resources department, a supervisor, or management, it is incumbent upon the company to undertake a serious investigation.
Investigations may be performed internally, assuming there is a person trained to recognize misconduct. Alternatively, outside counsel should be retained to conduct an investigation, especially when the allegations concern serious sexual misconduct or are filed against a high-level executive.
The investigator should speak to the alleged victim initially, advising her/him that the matter will be taken seriously and will be confidential to the extent possible. It is also incumbent upon the investigator to advise both the complainant and the accused that a fair and just investigation will take place and that no acts of retaliation or threatened retaliation will be tolerated.
The accused and any witnesses named should also be interviewed.
Once the investigation is completed, the person conducting the investigation should meet with human resources or outside counsel (if it is an internal investigation) to advise them of the investigation’s results and determine how the matter will be concluded and what discipline, if any, is warranted.
If there is discipline it is incumbent upon the company to advise the complainant and the accused of whether there was a finding that harassment or misconduct did take place. Similarly, if the investigation was unable to verify the allegations, that must also be reported to the complainant and accused.
Resolving the Issue
To demonstrate clearly that sexual harassment will not be tolerated, a company needs to impose real sanctions on employees found to have violated the policy.
There are many potential disciplinary procedures a company’s sexual harassment policy should describe, including termination. When people lose their jobs for sexually harassing coworkers, every person at the company will understand that the violations have serious consequences.