Employers: Reject Sexual Harassment (Part II)

This article continues last month’s discussion of steps businesses can take to address the seemingly perennial issue of sexual harassment. But it is worth reflecting again on the fact that, although legislation in recent decades has begun to reflect a growing social consciousness of this as unacceptable behavior, 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.

That is not to say there hasn’t been progress. In fact, sexual harassment is being addressed, in many circumstances, when and where it’s reported. But it remains unreported by up to 75 percent of our workforce, according to the U.S. Equal Employment Opportunity Commission (http://bit.ly/eeoc-sexual-harassment). And, in spite of efforts by employers to educate their workforce on harassment prevention, instances continue to occur. 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.

It behooves employers to adopt policies and practices that address the root of the problem. Those who don’t, face consequences from at least two directions: backlash due to the rise in social movements focused on issues of sexual harassment, and potential litigation from victims of such harassment. Plus, an unacceptable and unprofessional workplace experience can negatively impact productivity.

This article continues last month’s discussion of how businesses can 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 3: Assess Damage after Reacting

Even with businesses whose policy is already well-suited to any number of complaints they may receive, employers must be cognizant that harassment impacts not only the victim, but also those around the victim. 

Too often, employers investigate and address a complaint as an isolated scenario. Harassment is rarely isolated. Businesses that wish to reject harassment need to consider inquiring of their workplace, formally or informally, perhaps through a few questions on a survey, to determine whether or not other related concerns exist. This will give the 75 percent of employees who do not report harassment a voice within the organization. The results should then be analyzed to determine whether further complaints exist and determine what steps are necessary to remove any toxicity from the workplace.

Step 4: What It Takes to Reject

Completely rejecting harassment does not require a cure-all solution, but it does require an employer to consider his or her workforce and think through the implications of a complaint beyond addressing it at the baseline legal level. The previously described steps should be considered when evaluating harassment policies but shouldn’t be the only steps an organization takes when striving for rejection rather than simply addressing. The following is an evaluation checklist and questions to help an organization review and update its sexual harassment policy. 

Current policies. Do they explain harassment rights properly? Does the company’s mission or values statement clearly indicate a strong stance against harassment?

Complaint procedure. Who is the ultimate decisionmaker, i.e. the last line of decision-making? What happens when this person engages in harassment?

Training objectives. What is taught to new hires? What has been taught to existing employees?

Decision-making process. Are supervisors, managers and other decision-makers properly instructed in harassment, legal requirements in responding to a complaint, and the permissible factors to consider when taking corrective or disciplinary action? Is there quality control over such decisions, and is the controller of quality properly trained and instilled with the correct objectives to reject harassment?

Employee on-boarding. Is sexual harassment a topic addressed with new hires? What does the company exemplify and embody to those stepping through its doors for the first time as an employee?

Investigative processes. Are you properly considering use of third-party investigators in situations where bias may be unavoidable in an internal investigation? Do you have a good relationship with the investigative service?

Third-party contracts. If employees work with, for or at the worksite of a third party, does the employer have contractual provisions in place that dictate what happens when a complaint is filed? Do these provisions indicate who will investigate? Do they require adherence to federal, state and local anti-discrimination and anti-harassment laws?

The employer’s response. Is it simply a response to the complaint, or is there an effort to dig deeper and survey the environment in which the complaint arose? Doing only the former is not sufficient in working toward an objective of rejecting harassment.

With sexual harassment continuing to frequent headlines across the U.S., now is the right time for organizations to ensure their sexual harassment policies not only prevent but also effectively eliminate these types of situations.   

Part 1 covers Step 1: “Employers Must Dedicate Themselves to a Harassment-Free Workplace” and Step 2: “Employers Must Continuously Work to Reject Harassment.” — In Business Magazine September 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.