Check any news outlet today, and you’re almost certain to hear about a new sexual misconduct scandal involving an executive, politician or entertainer. I don’t know about you, but I’ve lost count of the number of alleged harassers. The allegations are nothing short of shocking, ranging from offensive acts of sexual harassment to criminal acts of sexual assault. In response, a multitude of corporations and — in a surprise move — the House of Representatives are mandating sexual harassment training for all employees.
This surge of sexual misconduct allegations has, once again, put sexual harassment in the spotlight. But this time, the allegations are sparking conversations about organizational culture and values, which can be the root cause for promoting and tolerating harassment. In light of the media attention on sexual misconduct in the workplace, at a minimum, every employer ought to take stock of their sexual harassment policy and processes to safeguard their business from a surprise claim.
Sexual harassment is a prohibited form of sex discrimination under Title VII of the Civil Rights Act of 1964. This federal law is enforced by the Equal Employment Opportunity Commission (EEOC) and covers businesses with 15 or more employees in 20 or more calendar workweeks in the current or preceding year. Even if your business is not covered by Title VII, it may be covered by a state, local or county anti-discrimination law that prohibits workplace harassment for smaller businesses.
Even before this surge of accusations that began with Harvey Weinstein, harassment was a big problem in workplaces. According to the EEOC, approximately one in four women (25 percent) have experienced sexual harassment in the workplace. And, last year alone, the EEOC resolved 30,582 harassment cases, resulting in $125.5 million in monetary benefits to employees. This doesn’t tell the whole story though. Aside from court awards and monetary settlements, companies with claims face significant direct financial costs associated with legal representation and indirect costs associated with lower morale, decreased productivity, distractions, increased turnover and a negative public perception.
Sexual conduct becomes unlawful under employment regulations when it is unwelcome and severe or pervasive enough to alter the conditions of employment and create an abusive working environment. The problem is, everyone defines “unwelcome” differently. Today, employees who refuse unwanted sexual advances, but who suffer no negative job consequences, can file discrimination complaints. In addition, an employer can be held liable for sexual harassment by a supervisor even if it had no knowledge of the supervisor’s misconduct. Gone are the days of “hear no evil, see no evil, know no evil” defenses. If your business receives a charge of sexual harassment discrimination from the EEOC or another fair employment practices agency and you can’t prove that you attempted to prevent harassment and that you adequately addressed the complaint, you’re considered guilty.
No question, the rules have changed. And let’s not forget the undeniable evidence of harassment that social media, recording devices on phones and hidden cameras provide. But, undeniable evidence of harassment is not required for a company to take employment action against an alleged harasser. What is required is an adequate investigation conducted by an unbiased party (usually not the alleged harasser’s boss) and, oftentimes, a credibility judgment call after the investigation is completed and all facts and information are considered. Making a credibility judgment can be uncomfortable for some employers, but at times, is necessary. According to the EEOC, the fact that there are no eye witnesses, no direct evidence of harassment, and/or no admission by the accused, does not necessarily defeat the complainant’s credibility. (For more information, see the chart, "Factors to consider when determining credibility.")
Don’t make the mistake of thinking that these elements are necessary before acting. The probable cause standard adopted by law enforcement does not apply to employment decisions made by employers. And, by all means, don’t adopt a “three strikes and you’re out” philosophy when it comes to harassment. Permitting an alleged harasser to remain employed until there are three complaints against him or her is a potentially dangerous and costly approach to resolving workplace harassment complaints and one that should never be adopted. In essence, this practice sends a message that it takes three incidents of harassment before one is deemed to be credible. (As if the volume of complaints makes a difference in determining if they are credible!)
To reduce exposure to sexual harassment and to create an organizational culture that prevents harassment, every employer ought to adopt a three-prong approach:
First, develop, disseminate and vigorously enforce a comprehensive policy against harassment. Ensure your policy forbids harassment; provides multiple channels for making complaints known to management; commits to conducting a prompt, thorough and impartial investigation; ensures confidentiality to the extent possible; and prohibits retaliation.
Second, conduct periodic sexual harassment training at all levels. Allocate the necessary resources to harassment training. Consider it an investment. Include all company managers and executives in the training. Document attendance. Absent a state regulation that requires otherwise, sexual harassment training should be conducted annually at every business.
Third, take every complaint seriously and investigate immediately. It doesn’t matter if the complaint is lodged by a “habitual trouble-maker,” if it involves an allegation against a customer (employers have the same responsibility when the claim involves a customer), if it seems trivial, or if the complainant is unwilling to submit the complaint in writing. Investigate it immediately, using a well-trained, objective and neutral investigator. When necessary, hire a third-party, qualified consultant to conduct a comprehensive investigation. Then, take appropriate action based on the results. Enforce a culture of accountability when it comes to harassment.
Many sexual harassment incidents in the workplace can be avoided by simply ensuring professional communication in the workplace. Managers must “model the behavior desired and required.” Here are some other common sense tips for management:
- Avoid references to employees’ physical appearance and comments about sex.
- Develop and distribute an electronic systems policy prohibiting sexually related email messages, jokes and photos. Use software to block access to inappropriate websites.
- Avoid physical contact with employees — respect individuals’ personal space.
- Use professional settings when conducting meetings outside the workplace.
- Recommunicate your policy prohibiting harassment prior to holiday parties and social events.
- Be conscious that “no” means “no,” no matter how softly spoken.
- Keep in mind that workplace favoritism can lead to hostile environment claims.
- Be wary of workplace romances. They can be fertile ground for hostile work environment claims, even when they are initially consensual.
- Do not condone offensive terms, sexually degrading words or sexual jokes.
- Watch for signs and learn how to read people. People want to be accepted by their peers and may be reluctant to report harassment.
A single incident or isolated incidents of offensive sexual conduct or remarks generally do not create an abusive/hostile environment; however, a single, unusually severe incident of harassment (e.g., unwelcome, intentional touching of a person’s intimate body areas) may be sufficient to constitute a Title VII violation. The more severe the harassment, the less need to show a repetitive series of incidents, particularly when the harassment is physical.
When it comes to harassment, don’t assume that an employee’s initial acceptance of harassing conduct waives his or her right to complain later. Conduct that is initially welcomed may later be unwelcome. In addition, voluntary submission to sexual conduct does not necessarily defeat a claim if the victim’s conduct indicates that the alleged sexual advances are unwelcome. Finally, the “it was invited” defense doesn’t go too far with the EEOC. Their position is that participation in sexual conduct and provocative speech or dress do not necessarily show that sexual behavior was welcomed.
The best way to reduce exposure and limit liability is to take proactive measures to prevent harassment in the workplace, including proper and ongoing training of managers and supervisors. This type of training is a wise investment that can save your company countless dollars.
If you haven’t conducted or arranged for sexual harassment training within the last year, now is the time! Don’t wait until your company is trending on Twitter for all the wrong reasons!