Sexual harassment and misconduct seem to be present in every industry. You train your workers on its definition and what to do if an employee is a victim. Rarely do employees report incidents. When they do, it could cost your business time and money to resolve an issue. Some persons choose to leave employ rather than confronting the matter. As an employer, what should you be doing?
“Sexual harassment” is unwelcome conduct of a sexual nature that is sufficiently persistent or offensive to unreasonably interfere with an employee’s job performance or create an intimidating, hostile or offensive work environment. It can be quid pro quo or hostile work environment. It can be overt, unwelcome physical advances, or verbal or psychological in nature. An action can be based on one incident or aggregation of a series of incidents even if one action in the series would not be harassing.
First, as an employer you need to understand your risk. Keep in mind that an employer can be held strictly liable for the actions of an employee who acts as a supervisor. Such strict liability is detailed in Title VII of the Civil Rights Act of 1964, 42 U.S. C. §2000e, et seq. Many States and local municipalities follow the Civil Rights Act. In Nischan v Stratosphere Quality LLC, 865 F. 3d 922 (U.S. Ct. App. 7th Cir. 2017), the Court set out the elements that generally must be proven to establish a claim of sexual harassment against an employer. The claimant must show “(1) he [or she] endured unwelcome sexual harassment, (2) he [or she] was harassed because of [his or] her sex, (3) the harassment was so severe or persuasive that it altered the conditions of employment and created a hostile working environment and (4) there is a basis for employer liability.”
Also, there must be a determination whether the alleged harassment was done by the supervisor or the person’s co-worker. If the supervisor is the alleged perpetrator, then the employer is strictly liable for the harassment. If the harassment was by a co-worker, the employer “is liable only if it was negligent in discovering or remedying the harassment.” Thus, an employer must act appropriately once it has notice, actual or constructive, of misbehavior.
Sexual harassment is a difficult topic and the subject may be embarrassing to discuss for some people. It seems that every day we hear about another sexual misconduct case. If you are like most businesses in the United States, you already conduct training to prevent sexual harassment at least once a year. Most employers conduct this anti-harassment training to meet the minimum standard to avoid liability.
We all know those individuals in the organization that belittle the training process or tell inappropriate, off-color jokes. Although this sexual harassment training has been successful in communicating basic information on what it is and where to report, it is less effective in stopping the behavior.
You can foster a respectful work environment and create training that communicates that your organization is serious about stopping sexual harassment. You need to take two actions: (1) have impactful, informative training that educates on prohibitive behaviors and (2) create a culture of accountability, equality and respect.
It is crucial as a business that you take the topic seriously. Here are some actions you can take:
- Start your training by putting participants at ease, convey the seriousness of the topic. Don’t laugh at any attempt by the naysayers to belittle the process or laugh or smile at jokes.
- Recognize that the standard training often reinforces the stereotypes that men are the powerful harassers and women are victims.
- Train your managers and supervisors separately from your employees. Train the managers and supervisors to listen and not be dismissive. Use construction-related scenarios to highlight behaviors that constitute misconduct as well as legally actionable harassment. Stop the slide down the slippery slope.
- Encourage civility in the workplace and treat all employees as equals.
- Empower and train the bystander to stop the harassing behavior; not by putting themselves in harm’s way, but by diffusing the situation or identifying the behavior in a non-accusatory manner.
- Support the victim and talk to them about the interaction. Encourage civility and a speak-up culture. Promote women.
Culture has much to do with whether your employees will come forward to report bad behavior. As an employer, learning about misconduct before it morphs into a major liability is key. Train to stop the behavior and not just to avoid liability.
If you want more information about this topic or any other compliance related matter, please reach out to Lorraine D’Angelo, LDA Compliance Consulting, Inc., Lorraine@ldacomplianceconsulting.com.