The volume of public allegations of sexual harassment and sexual assault, fueled by high-profile women honored as Time magazine’s 2017 Person of the Year—The Silence Breakers—and individual social media posts (#MeToo), continues to ripple through businesses, our government and our society. The impact of these revelations has prompted forced resignations, public firings, legal action and other disciplinary measures impacting powerful business executives, politicians, and others.
[E]ncourage your clients to review their risk exposure and work with experienced advisors to ensure their businesses have compliant sexual harassment policies and procedures, training, reporting, and investigative processes.
While the high-profile cases relate to Washington and Hollywood, the issues are not new. But they are becoming more public, as individuals come forward to report abuse in all industries. In fact, an Equal Employment Opportunity Commission (EEOC) report spanning 10 years (2005–2015) noted that the greatest number of harassment complaints (14%) came from hospitality and food service, with retail at 13%, manufacturing at 12%, healthcare at 11%, and other industries, including entertainment, in the single-digit range. The heightened awareness is causing many employers and risk managers to review employment practices supporting the company’s culture to ensure a respectful and safe workplace.
This review extends to how companies manage training, improper workplace behavior, employment contracts and even potential employment disputes that impact their culture and employment practices liability insurance. For example, it is common for employers to have employees sign agreements stating any employment dispute will be settled through binding arbitration. That practice, as it relates to sexual harassment and sex discrimination disputes, may change. In December 2017, a bipartisan bill, the Ending Forced Arbitration of Sexual Harassment Act, was introduced in the Senate. If it becomes law, it will be illegal for employers to enforce arbitration agreements for these claims, allowing these cases to go to court. Morality clauses are being reviewed and strengthened to include sexual harassment in executive employment agreements.
To help protect your clients from being the next headline, focus on strengthening their company culture, harassment prevention and swift resolution of complaints.
What constitutes sexual harassment?
Often there is an incomplete understanding of what constitutes sexual harassment. The scandals reported in the news over the last few months are causing some employees to rethink their office behaviors. Does a sexually-laced joke shared in a crowded breakroom rise to the level of harassment? How about giving a coworker a friendly hug? Or telling a coworker that her outfit looks nice? Or asking a coworker to dinner to discuss his role in a new project?
Let’s start with an understanding of the basic forms of sexual harassment.
Sexual harassment is generally divided into two categories. The first is unwelcomed sexual conduct that is either an explicit or implicit term or condition of employment, such as offering an employee a promotion or pay increase for agreeing to sexual demands or terminating an employee who refuses a sexual advance. This is known as quid pro quo (this for that) sexual harassment. For example, in the high-profile case last fall involving Harvey Weinstein, Weinstein was accused of textbook quid pro quo sexual harassment by requesting sexual acts or favors from actresses and others in the entertainment industry in exchange for favorable treatment or roles.
The second form of sexual harassment is unwelcomed sexual conduct that unreasonably interferes (on purpose or in effect) with an individual’s work performance or creates an intimidating, hostile, or offensive working environment. This is known as hostile or offensive work environment sexual harassment.
Harassing behavior can include sexual advances, requests for sexual favors, other verbal or physical conduct of a sexual nature, or offensive remarks about a person’s appearance. While the recent accusations appear to primarily focus on sexual harassment directed at women, both men and women may be sexually harassed, and harassment can occur between members of the same sex.
Preventive measures your clients can take
The following are best practices your clients can implement to ensure compliance with sexual harassment laws and protect their workplace environment.
Update employer policies and procedures. The EEOC recommends that sexual harassment policies and procedures include the following:
- An unequivocal statement that sexual harassment (or other harassment based on any protected characteristic) will not be tolerated.
- A clear, simple, and easy-to-understand description of what constitutes harassing behavior or conduct, including examples of the types of behaviors that are considered harassing.
- A description of the employer’s established reporting system, including all avenues for reporting (for example, reporting to a direct supervisor, to a department head, or to human resources) and who can report incidents of harassment (such as the victim and any employees who observe harassing behavior).
- A statement that allegations will be investigated promptly and thoroughly through an impartial process and that individuals involved in the investigation (victim, witnesses, and/or the target of the complaint) as well as information gathered during the investigation will be kept confidential by the investigator(s) to the extent possible.
- Assurances that the employer will take immediate and proportionate corrective action if the investigation reveals sexual harassment has occurred.
- A statement that any individual who reports an incident of sexual harassment, either as a target or a witness, will be protected against retaliation from coworkers and supervisors or managers. If the individual does experience retaliation, the coworker, supervisor, or manager who retaliates will be disciplined appropriately.
Make training a priority. Training both management and employees on sexual harassment, bullying behavior and nondiscrimination protects the company during employment disputes and reinforces the company’s zero tolerance for those behaviors. Encourage your clients to involve senior management, and go beyond the typical annual corporate harassment training by training more often and reinforcing positive respectful workplace behaviors that support the company culture. This training should include methods for dealing with harassment, reporting harassment claims, assessing employees for risk factors for harassment, and consequences for failing to address and report harassment.
All training should be specific to your client’s written policies and procedures and should encompass state training requirements or recommendations, if any. While only three states (California, Connecticut and Maine) require harassment training for supervisory personnel in non-governmental companies, other states mandate training for public sector employees and recommend harassment training for all employers.
Encourage harassment incident reporting. Even with solid prevention measures, incidents can happen. Establishing an effective reporting process that makes it easier for individuals to come forward to report issues of harassment allows your clients to act and stop wrong behaviors. Make sure that the reporting process is managed and staffed by several representatives who are properly trained, take all reports seriously, and promptly and thoroughly respond to any reports of harassment. The process should give employees options for reporting and allow them to report harassing behavior to a responsible person with whom they feel comfortable and safe.
Follow up on complaints immediately. Having well-trained, neutral, and objective investigators and a timely, well-documented investigation process also is critically important. To the extent possible, the investigation should remain confidential, and involvement should be limited to those individuals needed to conduct a thorough investigation and to gather all the facts. Additionally, clients should implement mechanisms to ensure that individuals who file reports of sexual harassment or provide information during the investigative process are not retaliated against and that individuals alleged to have engaged in harassment are not adversely treated while the investigation is pending.
In conclusion, encourage your clients to review their risk exposure and work with experienced advisors to ensure that their businesses have compliant sexual harassment policies and procedures, training, reporting, and investigative processes. This builds a positive company culture, fosters a safe and productive workplace, and limits the risk of becoming the next headline.
For a copy of ThinkHR’s “Conducting a Harassment Investigation Checklist”, email Laura at [email protected]