Whether you are directly responsible or not, if sexual harassment claims are levied at your business you must have a policy in place to respond. Hopefully, you have a policy in place to limit the chances such claims will happen in the first place.
The news seems to be full of such workplace sexual harassment cases these days. Ex-Fox News host Bill O’Reilly was fired from the Fox News Channel in April. O’Reilly had been the focus of sexual harassment claims by five separate women resulting in settlements totalling $13 million.
Ride sharing company Uber’s chief executive Travis Kalanick resigned last month after similar claim at the company — though they were not made against Kalanick personally. Uber’s issues started when a former engineer, Susan Fowler, raised the issue of sexual harassment at the organization and the HR department’s inaction.
Ultimately, the company hired a law firm to look into the allegations. The firm checked out 215 staff complaints dating back to 2012. The results were sufficiently damaging, resulting in the firing of 20 employees and promises to change the company culture.
What Constitutes Sexual Harassment Under The Law?
You may already be asking yourself how your business should respond to a sexual harassment claim. Another good question you should probably ask is how to decrease the incidence of such behavior at your company in the first place.
Your concern here should not simply be to limit your business’s potential liability. It should also be a desire to create a non-threatening work environment for your employees who will, in turn, do their best work for you.
It may first be helpful to define what sexual harassment is, within the context of the law.
The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as a form of discrimination that violates Title VII of the Civil Rights Act of 1964. It can include requests for sexual favors, unwelcome advances of a sexual nature as well as physical or verbal conduct. The EEOC investigates allegations of sexual harassment. They also reported there were 12,860 sexual harassment filings last year — a number that represents a seven-year high.
According to the EEOC website, U.S. sexual harassment laws cover companies with 15 or more employees. Although there might be a variance by state, complainants generally have 180 days to file.
What Can Small Businesses Do?
Small businesses need to take an active role in preventing sexual harassment and correcting any incidents after they’ve happened.
ComplyRight, a firm specializing in helping small businesses navigate a variety of compliance issues, has some strong recommendations. The company suggests being proactive can make all the difference in avoiding the damage one of these claims can cause to both your business and the people who work for it.
Putting together the proper resources and processes lays the right kind of foundation. Small businesses must have the tools at their disposal to be able to react, investigate and report in a timely, lawful way when any sexual harassment incident comes to light. Without the proper framework in place, these incidents can escalate into legal action.
Start with a Written Policy
Small business owners have a legal defense against harassment claims if they have a written policy and some other tools in place. In fact, a written policy is one of the major legal defenses against liability. As a result, it is important to have policies in place before a claim of sexual harassment can arise. The policy needs to show you have tried to prevent and correct harassment. Here are some of the major components a good policy should include:
Define Sexual Harassment
A good policy should define what constitutes sexual harassment with examples of situations to be avoided.
The policy should also provide an internal procedure for complaints to be filed, including several methods and avenues employees can utilize to report a claim. According to Ashley Kaplan, Esq., senior employment law attorney with ComplyRight, “It’s best to designate at least two individuals. Both should be trained on receiving and documenting harassment claims. A lot of companies make the mistake of requiring employees to report harassment to their direct supervisor, overlooking that the supervisor may be the alleged harasser.”
Encourage and Inform Employees
Employees should be encouraged to report incidents without delay. This includes informing them their complaints will be taken seriously, investigated and that appropriate action will be taken. Mention all complaints will be treated confidentially where possible. Make sure staff understands your company has zero tolerance for retaliation against employees who lodge a complaint or assist in an investigation. “This is critical,” explains Kaplan. “Employees can prevail on a retaliation claim even if the underlying harassment claim is without merit.”
Focus on Good Training
Required training for both workers and managers varies by state, but is always a good investment in your small business’ future. California is one of the states at the forefront of sexual harassment training. The state requires supervisors undergo two hours of interactive training every two years.
A training course can include both online and classroom content. The most successful have incorporated both skill building activities and hypothetical situations. The courses should contain sections on what constitutes sexual harassment, what to do when harassing behavior takes place, how to report harassment and the responsibilities of both employers and employees.
“Managers and supervisors should be trained separately on their responsibilities,” says Kaplan. “As agents of the business, they have a heightened role to intervene if they observe or become aware of harassment, even if the alleged victim asks them not to do anything about it.”
Develop Clear Reporting Procedures
However, a small business’ responsibilities don’t end after adopting a written policy and training procedure.
First, it’s a good idea to designate people within your business to properly handle a harassment complaint, if filed. Pick an individual or team able to act independently of management. You will need this step to maintain credibility should a member of your management team be named in a claim.
Your investigating and reporting procedures need to be unbiased and thorough. Everything needs to be documented — from the interviews conducted to the subsequent findings and corrective action taken. Don’t forget to include a written acknowledgment of the resolution.
“Your objective is to make sure the harassment stops and protect the victim from further harm. Depending on the outcome of the investigation, this could mean terminating the offender,” says Kaplan.
By taking these actions, small business employers can work to mitigate the possibility, and associated legal risks, of harassment in the workplace.
Through HRdirect, ComplyRight offers training videos covering all forms of illegal workplace harassment, from sexual to religious harassment, as well as policy forms and response tools to combat this serious issue. For more information, please click here.