Employers: Reject Sexual Harassment (Part I)

by Ben Hase 

Recent events have brought sexual harassment into the spotlight, but it is no stranger to this kind of recurrence. Employees, employers, courts, attorneys, business owners, human resources professionals and many more have struggled with the topic for decades. It was not until the second half of the 20th century that legislation reflected the desire to eliminate sexual harassment from our workplaces. What has and has not changed since then?

In many circumstances, sexual harassment is being addressed when and where it’s reported, but, according to the U.S. Equal Employment Opportunity Commission, it remains unreported by up to 75 percent of our workforce. Organizations educate their supervisors and staff about harassment prevention on a regular basis, but harassment at all employee levels continues in some cases. Employment attorneys advise their clients to take swift, remedial action when harassment is corroborated, but this advice is not always followed when the remedial action involves terminating a profitable, successful employee, or in cases where certain business factors discourage employers from engaging with these third-party investigators.

In short, the issue remains. Despite decades of increasingly severe legislation and judicial disapproval, instances of sexual harassment still exist. Laws, best practices, and policies have failed to completely eliminate the issue, paving the way for social movements to bring the issue to the forefront.

This rise in social movements can create risks if employers don’t adopt policies and practices that address the root of the problem. And those who suffer from sexual harassment may be more inclined to litigate the issue than to resolve it internally. These factors and continued harassment in the workplace facilitate an unacceptable and unprofessional workplace experience, negatively impacting productivity and allowing legal risks to fester. 

How do we address these issues in a conscientious way that brings problem solving back into the responsibility of human resources, rather than within the purview of social and mass media?

Step 1: Employers Must Dedicate Themselves to a Harassment-Free Workplace

A harassment-free workplace takes more than a good policy, baseline training and a swift response. It requires us to practice and live the message that harassment is not tolerated among the workplace. Businesses can start by looking at their company values — is this message reflected therein? If not, those mission or values statements should be revised and re-issued. Ask whether we (yes, you) and other workplace leaders, from supervisors to the chief executive officer, live these values. If we do not, we are sending the message, “Do as we say, but do not do as we do.” 

For example, when recent graduates enter the workforce, the majority of their learning stems from their co-workers and their supervisors, including the leaders of the organization. As an organization, we may instruct them on how to prevent harassment, but if our C-suite does not take harassment seriously, or even engages in harassing behavior, it may shape the next generation of workers in a way that perpetuates sexual harassment.

Above all other considerations, having expectations and policies in place that match this formative and modeling effect of sexual harassment conduct can serve as the determining factor on whether sexual harassment will be rejected or if it will continue to persist for the next generation and those to come. Businesses may find it helpful to consult a third party to determine whether or not sexual harassment policies fall in line with this thinking. 

Step 2: Employers Must Continuously Work to Reject Harassment

Traditionally speaking, when a harassment complaint is received, it is investigated and corroborated, and the harasser is ultimately fired. The situation fades and the company moves on.

Such is a common lifecycle of a standard harassment complaint. It is suited to address harassment. However, addressing harassment is not synonymous with rejecting harassment. Businesses that wish to reject harassment need to take the practice one step further. 

At the simplest level, a business’s decision makers need to think about what makes each situation unique. Is that nuance reflected in company policies? For instance, in the case of a complaint by an employee against a third-party non-employee, the business needs to check whether its policy addresses harassment by third parties. If not, it should update its policy. 

Lastly, businesses need to consider situations that will be difficult to address given existing policy mechanisms. For example, if the policy vests ultimate decision-making authority in a high-level employee, such as the CEO, what happens if the CEO is the harasser? It’s important to think about how this situation could be handled and discuss solutions within the organization to devise the correct mechanism. Businesses may need to hire a third-party investigator or develop a team of employees throughout the organization to carry out or ultimately make a decision following the investigation. 

Part II covers Step 3: “Assess Damage after Reacting” and Step 4: “What It Takes  to Reject” — In Business Magazine October 2018

Ben Hase is the managing attorney for Information Services provided by the Employers Council (formerly Mountain States Employers Council), where he also coordinates California and Nevada legal services. While his office is located in Denver, he supports clients in many states with employment law issues, including tax-favored savings or benefits plans and correction programs, discrimination, unemployment benefits, wage and hour claims, FMLA and more. The development of his employment law practice area includes three years spent in private practice litigating on behalf of plaintiffs and more than five further years spent at the Colorado Civil Rights Division working on complex discrimination issues, as well as three years defending and counseling employers in labor and employment law claims as a staff attorney for EC.

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