Employers must exercise reasonable care to prevent and promptly correct any workplace harassment. Failure to do so may subject the employer to penalties under the law. Below are considerations for implementing anti-harassment policies and procedures:
Laws prohibiting sexual harassment.
Title VII of the Civil Rights Act of 1964 and many state laws prohibit sexual harassment in the workplace. These laws require employers to take steps to prevent and correct sexual and other unlawful harassment. Title VII applies to employers with 15 or more employees, but state and local laws may cover employers with fewer employees. Check your applicable laws to ensure compliance.
Sexual harassment defined.
Sexual harassment includes unwelcome verbal or physical conduct of a sexual nature that explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. For example, harassment may occur when a supervisor uses submission to or rejection of unwelcome conduct as the basis for employment decisions. In addition, a hostile work environment may exist when conduct is so severe or pervasive that it creates an abusive working environment.
Harassment by non-employees.
Under federal law, a hostile work environment can occur even if the harasser is a third party, such as a client, vendor, or independent contractor. If an employer learns that a third party may be harassing employees, the employer should take appropriate action (see the Complaints, Investigations and Corrective Action sections below).
Monitor supervisor conduct.
Under certain circumstances, an employer may be held responsible for sexual harassment by a supervisor. For example, if a supervisor fires an employee for rejecting his or her sexual advances, the employer may be held responsible for the supervisor's conduct.
Harassment by either gender.
Both men and women may be considered harassers or victims, and the victim does not have to be of the opposite sex. Note: The number of sexual harassment complaints filed by men has increased.
Conduct anti-harassment training.
It is a best practice to conduct supervisor and employee training on sexual harassment. In fact, several states, including California, Connecticut and Maine, require employers to provide sexual harassment training. Check your state law for specific training requirements, including who employers should train, how often they should provide training, and content and recordkeeping requirements.
Retaliation is prohibited.
Employers may not take any adverse employment action against an individual for opposing sexual harassment or for participating in an investigation of sexual harassment. For example, an employer may not fire an employee or refuse to hire an applicant because he or she filed a sexual harassment complaint or participated in an investigation of a complaint filed by another employee.
Distribute a written anti-harassment policy.
It is a best practice for all employers to have a written policy prohibiting sexual and other unlawful harassment. In your policy, provide examples of prohibited conduct, address consequences for violating the policy, and set forth a clear procedure for employee complaints.
Establish an effective complaint process.
Encourage employees to report inappropriate conduct, without fear of reprisal, before it becomes severe or pervasive, whether they are a victim or a witness. Offer employees multiple avenues through which they can file complaints. If an employee is not comfortable reporting an incident to their supervisor, make sure the employee has the contact information for an HR representative or another manager trained to field the complaint.
Investigate all complaints.
When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer must investigate promptly, thoroughly, and impartially. An employer must investigate all harassment complaints. Effective complaint and investigation processes can help an employer demonstrate its efforts to comply with anti-harassment laws and defend itself against harassment claims.
Take appropriate action.
If an investigation reveals that harassment occurred, take immediate and appropriate corrective action to remedy the harassment and prevent it from recurring. Additionally, correct the effects of harassment, such as restoring lost employment benefits or opportunities. Consider disciplinary measures that address the severity of the offense and administer your disciplinary policy on a consistent basis.
Conclusion
The costs of sexual harassment in the workplace go beyond just penalties—it can also lower productivity, increase turnover, and make it difficult for employers to recruit employees. To help maintain a fair and productive workplace, establish effective policies for preventing and correcting sexual harassment, and train supervisors and employees on your anti-harassment policies and procedures.