Stan Martindell
Topeka Electric Motor Repair, Inc.
In 2017, the U.S. Equal Employment Opportunity Commission (EEOC) recovered $46.3 million for workers alleging sexual harassment. With the rise of the #MeToo movement, this number is likely to keep increasing. It is imperative that employers are informed on what sexual harassment is, who may be liable for harassment, and policies and procedures that are in place or should be in place to help prevent and to report sexual harassment.
Of the 110 respondents to the recent Management Pulse survey on sexual harassment, 71.8% of respondents said their company has a sexual harassment policy and 62.7% have a sexual harassment complaint procedure. All companies should have a policy and complaint procedure in place to help prevent sexual harassment and to reduce potential liability.
Reporting sexual harassment
Only 13.6% of survey respondents have ever experienced a sexual harassment claim. Although this number may seem low, it is likely that sexual harassment still occurs in the workplace but that it goes unreported. This failure to report could be due to a number of factors including but not limited to: fear of disbelief of their claim, inaction on their claim, blame, fear of retaliation, lack of a strong policy against sexual harassment, or lack of a reporting procedure.
According to the EEOC, workplace culture has the greatest impact on allowing harassment to flourish or conversely, in preventing harassment. It is extremely important for leadership at the highest level of management of a company to promote a culture in which harassment is not tolerated. Accordingly, there must be accountability systems in place to hold employees that engage in harassment responsible for their actions in a meaningful, appropriate, and proportional manner.
Preventing harassment through training, policies and procedures
The EEOC reports that when an employer has an effective anti-harassment program, including an effective and safe reporting system, a thorough workplace investigation system, and proportionate corrective actions, it communicates to employees by those measures that the employer takes harassment seriously. This also means that more employees will be likely to complain if they experience harassment or observe harassment, allowing employers to deal with incidents of harassment much more effectively.
A company should have a stated policy against harassment that presents the behaviors that will not be accepted in the workplace and the procedures to follow in reporting and responding to harassment. The EEOC advises that once an anti-harassment policy has been put into place, employers should regularly train employees on its contents and should adhere to and enforce the policy.
An effective reporting system for harassment is critical to a culture that condemns harassment. A reporting system includes a means by which individuals who have experienced harassment can report the harassment and file a complaint, as well as a means by which employees who have witnessed harassment may report it to the employer. An effective reporting system that is fair to an individual accused of harassment contributes to all employees’ faith in the system and will help prevent and reduce future harassment.
Effective training will also help reduce workplace harassment and must be part of a culture of non-harassment which starts at the top. Training must have specific goals and must contain certain components to achieve those goals according to the EEOC. Employers should offer compliance training for all employees. This is training that helps employers comply with the legal requirements of anti-harassment laws by educating employees on what forms of conduct are not acceptable in the workplace and about the conduct they have a right to complain about. The training should also describe the type of behavior that if left unchecked might rise to the level of illegal harassment. Employees should also be educated on their rights and responsibilities if they experience unacceptable workplace conduct or if they witness others engaging in harassment.
Employers should also keep in mind that they should not punish employees who have complained. Employees who are punished or feel that they have been punished may bring a retaliation claim which is separate from a harassment claim and may be difficult for an employer to defend.
Protecting employees from third-party harassment
Only 54.5% of the 110 survey respondents were aware that employers may be held liable for non-employee sexual harassment such as harassment by customers and contractors. Employers will be held liable for harassment by non-supervisory employees or non-employees over whom it has control such as independent contractors or customers on the premises if it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action.
If a third-party sexual harassment complaint arises, the employer should immediately investigate the incident. If there was inappropriate conduct that took place, then the employer should act.
As a reminder, employer liability for harassment includes not only sexual harassment, but harassment on the basis of other legally recognized protected classes. These include but are not limited to: race, national origin, disability, age (40 or older) and genetic information discrimination. By incorporating training, policies, procedures, and creating a culture condemning all forms of harassment, employers will be successful in reducing their liability for harassment.
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