Editor's note: Jeffrey S. Ettenger, Esq. is a partner at Schwartz Ettenger PLLC where he concentrates his practice in the area of labor and employment law. He is a regular speaker and writer on employment law topics for business owners.
Media coverage about sexual harassment claims should be a wake-up call to employers, illustrating that they must be proactive in preventing and responding to such complaints.
You don’t have to be a big company to be hit with a lawsuit and find yourself facing significant liability, not to mention reputational damage and drops in productivity and morale. The best defense begins with effective sexual harassment policies and procedures, including the following components:
- A policy. Your handbook should define sexual harassment and explain what behavior is unacceptable. And it should not only focus on obvious examples of harassment; oftentimes, harassment involves subtle, ambiguous actions and speech.
- Education and training. Employers, supervisors and workers need to understand what sexual harassment is and how to prevent it. Regardless of the form the training takes, it’s important to highlight examples that may not be obvious to some people. Comments about someone’s looks or attire; a kiss, hug or other physical interaction; or an email with a joke that involves sexual content may be good-natured fun to one employee, but may make others feel uncomfortable. It doesn’t matter whether employees believe everyone “knows” it’s a joke; that’s not always the case and it can be very hard to explain years later at a deposition or a trial that “everyone was joking around.”
- Reporting and investigation procedures. Employers should establish and clearly communicate procedures so an employee who has been sexually harassed knows how to report the incident and is confident that the employer will take appropriate steps to investigate the matter and handle it appropriately. Employees must be comfortable reporting acts of misconduct and there must be a legitimate process to investigate claims and take corrective action. Issues often can be resolved if there’s an effective process in place ahead of time. Problems arise when the employer fails to recognize a claim and take appropriate action.
- Proactive responses. Following an investigation, you should be prepared to document your findings and take any necessary corrective action. Never ignore a situation; an employer has to shield employees against bad acts and if an employee doesn’t feel protected, litigation is a likely result.
- A broad awareness. It’s important to remember that you can’t bury your head in the sand if harassment is coming from a non-employee. If a customer, vendor, subcontractor or independent contractor is harassing one of your employees, you still have an obligation to protect them from harassment in the workplace. Similarly, employers shouldn't ignore complaints from clients, vendors or other third parties alleging that one of your employees has harassed them. Under all circumstances, the employer should investigate claims and handle situations accordingly.
Employers can’t afford to ignore potential sexual harassment claims. Be proactive in establishing effective policies and procedures to prevent and respond to sexual harassment. And when in doubt, employers should contact qualified legal counsel for advice.