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.

 

 

 

 

 

A Reference Check Double Standard

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Recently, I was asked how I felt about requiring applicants, whom an organization wishes to hire, to provide three individual references.  These three would be asked to vouch for the applicant’s work-related performance.  This was asked in light of the fact that this hiring organization itself has a reference neutral policy, i.e., they only provide dates of employment, position title, and, if the former employee authorizes it, his/her salary.

Isn’t this a double standard?

Reasons to Conduct

According to the Society for Human Resource Management (SHRM’s) “Conducting Background Investigations and Reference Checks”, October 4, 2016, “There are many reasons employers conduct appropriate levels of screening for prospective employees through a background investigation, a reference check or both.

Avoiding injury

A major reason to conduct background and reference checks is to avoid harm or legal liability of various types to the employer or to others—for example, harm to:

  • The employer’s business through financial loss or image and reputational issues.
  • Other employees by sexual harassment or workplace violence.
  • The organization’s customers by, for example, sexual assault on business premises.
  • The public by negligent driving.

Litigation defense

Defense of legal claims—negligent hiring and retention, as examples—is a compelling reason to conduct in-depth criminal records searches of job applicants. A multilevel jurisdictional criminal records search can be strong evidence that the employer exercised due care in hiring.

Maximize productivity

Hire the best and reject the rest, the saying goes. Typically, past performance is a strong indicator of future performance and can reveal an individual’s professionalism, productivity, job skills and interpersonal communication abilities. A reference check helps distinguish between a true high flier and a mere poser.

In addition to verifying past employment (dates of employment, job titles, duties performed, circumstances of separation, and compensation), you want to determine qualifications, and verify authenticity of any reference letters received.

Trends

A variety of developments and trends in society at large are reflected in trends associated with background screening and reference checks.

Frequency of use

Surveys conducted by SHRM and other organizations reveal a trend toward greater use of background investigations and reference checks in employment. This trend is driven by several factors, including:

  • Security issues in a post-Sept. 11 world.
  • New legislation, particularly in the area of immigration law enforcement.
  • Technological advances that make background investigations faster and more economical.
  • Increased awareness of the various risks of failure to conduct adequate background checks.
  • A rise in the willingness of applicants to misrepresent their credentials.
  • Increasing competition among applicants due to the dearth of new jobs in a post-recession environment.

Types of findings

According to a 2014 CareerBuilder.com survey,1 industries that appear to encounter fraudulent resumes most often are:

  • Financial services (73%).
  • Leisure & Hospitality (71%).
  • Health Care (63%).
  • Information technology (63%).
  • Retail (59%).

In a 2015 SterlingBackcheck report,2 the manufacturing industry lead with the highest criminal record hit ratios.”

So, what should an organization do?

Employment attorneys will advise that a reference neutral policy is the safest way for an organization to go in terms of risk mitigation.

Whether or not you are part of an organization which requires employment-related references as part of your hiring process, we recommend that you begin or continue this practice as part of your due diligence.  You may be questioned as to why you should expect other organizations to do what you, yourself, are unwilling to do.  The short answer is that while this is a double standard, other organizations can always decline to provide performance-related references to your organization too.

Thoughts?

the HRmeister

 

Endnotes

1CareerBuilder.com. (2014, Aug. 7). Fifty-eight Percent of Employers Have Caught a Lie on a Resume, According to a New CareerBuilder Survey [press release]. Retrieved from http://www.careerbuilder.com/share/aboutus/pressreleasesdetail.aspx?sd=8%2F7%2F2014&id=pr837&ed=12%2F31%2F2014

2SterlingBackcheck. (2015). Background Screening Trends & Best Practices Report 2015-2016. Retrieved from http://webcache.googleusercontent.com/search?q=cache:54Nb19JJ4GMJ:www.sterlingtalentsolutions.com/~/media/Sterling%2520Backcheck/PDFs/reports/SterlingBackcheck_Benchmarking_Report_2015.ashx+&cd=1&hl=en&ct=clnk&gl=us