Sexual Harassment is Front and Center

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I suspect that you have heard about the recent allegations that a Hollywood film producer committed acts of sexual harassment.  Soon, both parties’ political figures, television celebrities, and others were either charged with having committed acts of sexual harassment or came forward to say that they were victims of it.

The Best Defense is a Good Offense

There is significant liability at risk with sexual harassment and employers need to take a very proactive and aggressive position. All employers should have a Sexual Harassment Prevention or Anti-Harassment Policy.  It should clearly state that your organization has a ‘zero tolerance’ for any form of harassment (sexual or otherwise), including bullying, and you must mean it.

Sexual harassment can occur at the office as well as away during offsite meetings, receptions, and other social gatherings.  Employees should know who to report their concerns to in their organization, and be informed that all complaints will be quickly and thoroughly investigated and treated in as confidential a manner as possible.

Although civil rights laws protect employees against retaliation, organizations should also have their own No Retaliation Policy, such that anyone who comes forward with a concern or a complaint, will not have to endure either covert or overt retaliation.  Employees should always feel comfortable coming forward with their concerns.

As with any investigation, it’s important that there are eye witnesses to any infractions, as otherwise, it often boils down to a he said, she said.

Two Kinds of Sexual Harassment

There are two kinds of sexual harassment.  The first kind is referred to as Quid Pro Quo,  which is Latin for ‘this for that’ or ‘this in exchange for that’. This is typically seen between employees of unequal rank, e.g., supervisor and employee, where the supervisor either offers a benefit (good assignment, raise or promotion) if the person complies with the request or threatens with adverse job action, (failure to promote,  demotion, poor assignments, or cuts pay) if the person does not comply.  According to SESCO Special Report: Harassment in the Workplace, November 20, 2017, in these instances the employer is automatically liable for harassment and there is no defense regardless of the policies, training, and preventive action that the employer has implemented.

The second kind is referred to as ‘hostile environment’.  This is defined as frequent, severe (note these two key words), unwelcome harassment where a reasonable person would consider it intimidating, hostile, or abusive. It can occur between employees of equal or unequal rank.  It also protects employees from harassment from customers, patients, interns, and vendors.  Examples of hostile environment may include cat calls, whistles, dirty jokes, name calling, epithets, physical assaults or threats, offensive objects or pictures, etc.  Circulation of inappropriate e-mail even to a select group is intolerable and may also be an example of harassing behavior.  Harassers can be either male or female and same sex harassment is also illegal.

One final point to consider is that everyone’s sensibilities are different.  For example, if one hears a dirty joke, he/she may find it offensive and may report it.  Someone else, may not be offended by hearing the same dirty joke.

You’ll want to note that the Equal Employment Opportunity Commission’s Public Portal launched November 1.  It provides employees nationwide with resources on discrimination complaints, including frequently asked questions and the option to electronically file and sign charges.  So it’s incumbent upon all employers to take sexual harassment seriously.  Quickly and thoroughly investigate all raised concerns, and, if the allegations are substantiated, take appropriate disciplinary actions, and inform the employee that brought forth the concern that the matter has been properly addressed.  Properly documenting your investigations will help to effectively mitigate risk for your organization.

Educate, Educate, Educate

Not only should every organization have a Sexual Harassment Prevention or Anti-Harassment Policy, it should annually require all employees to re-read it and sign a document which confirms that the employee has read and understands the policy.  Employers need to be able to attest that each employee has received refresher training annually with face-to-face training being the most effective.  Additional training should be offered to your organization’s leadership team.  They are held to a higher standard than rank and file employees, as they are considered ‘agents’ of the organization.

SESCO adds “…that employers will be liable for harassment by non-supervisory employees and non-employees of whom it has control (e.g., 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.”

Now that sexual harassment is ‘front and center’ take the necessary steps to educate and protect your organization’s most valuable ‘human’ assets.

Good luck.

theHRMeister is now Principled HR Consulting, LLC

Endnotes

Consider Face-to-Face Training as EEOC Makes Filing Harassment Complaints Easier, by Aliah D. Wright, in Society for Human Resources Management article, November 28, 2017.

 

 

 

 

 

“Why can’t I just terminate him”?  A Case for Creating and Reviewing Documentation

Documentation!
Documentation! (Photo credit: WGBH.org Development Blog)

How many times have we heard that same question?  OK.  Maybe we won’t answer that question.

The HRmeister recommends that we take a deep breath and exhale before moving forward with an employee termination.  First, we will need to do some research, and perhaps, even conduct an investigation.

Deborah J. Muller writes, “Documenting an investigation is one of the most critical, but often overlooked, elements of an investigation. Proper investigation documentation can be used as a key tool for legal defense and often can mean the difference between winning or losing an employment-related lawsuit”.

In her same blog post, Deborah offers her “Top Tips for Creating and Reviewing Documentation”.  Included in her tips are timely reminders to be consistent, quote exactly as much as possible, don’t use buzzwords, be clear about the sequence of events, document significant body language, stay factual, be clear about conclusions and recommendations, and re-read before you submit, among others.

To the extent we heed this sage advice, we will be doing a favor to the employee, the organization, and ourselves.  Though most of us are likely employed at will, i.e., we can be terminated for any or no reason, we will likely arrive at better outcomes and mitigate unnecessary risk with impartial, well documented investigations.  It takes time to perform a thorough investigation, but it’s an investment that will pay off.  In addition, we need to ensure that we’re following any applicable HR Policies, including any established corrective action procedures, as well as assessing whether there may be any FMLA or ADA implications.

See?  It may not be so easy to answer that question.  If we do our due diligence, then we’ll be better positioned to determine whether it makes good business sense to terminate or not.

What do you think?

The HRmeister

References:

Deborah J. Muller, “Top Tips for Creating Investigation Documentation”, Published September 21, 2012