Sexually oriented comments and behaviors can destroy workplace morale and spark costly lawsuits. As victims of sexual harassment become more willing to speak out, organizations of all sizes are taking steps to address the problem. Employers can protect their personnel by instituting policies and procedures that promote a respectful business environment.
Yesterday Jake complimented Sarah on her “sexy” new hairdo. Today he patted Marianne on the shoulder and thanked her for wearing a “revealing” new outfit. As for Deborah, the regional vendor rep: Jake has been pressing her for a date to “get better acquainted.”
Maybe Jake is a top performing employee, and maybe the women always seem to play along with his chatter.
“Ignoring the issue of sexual harassment can lead to disaster on many levels,” says Joseph P. Harkins, a shareholder in the Washington, D.C. office of San Francisco-based Littler, the world’s largest employment law practice representing management (littler.com). “Businesses can be subject to costly financial settlements, damaging morale issues, and negative publicity.”
Beware the risk
People often think of sexual harassment in terms of quid pro quo: a supervisor offers someone a job or a raise in return for a sexual act. But in today’s workplace, most sexual harassment stems from a much more insidious problem.
The issue has become more acute as employees have become more willing to speak up about people like Jake. “We have come to a tipping point in society where people are starting to believe individuals who say they were sexually harassed,” says Valda Ford, CEO Of Omaha-based Center for Human Diversity (centerforhumandiversity.org). “And that’s a good thing.
The financial cost of sexual harassment lawsuits is top-of-mind for many business owners. And the cash involved can certainly be substantial:
“It is popular for plaintiffs to sue under state law for the unlimited damages,” says Harkins. And, the financial costs don’t end there, he adds: “Most statutes include fee shifting provisions, so a prevailing employee’s attorney fees are paid by the employer.
Moreover, transgressors can incur personal responsibility. “Some state laws extend liability for general sexual harassment to the individual,” says Bob Gregg, co-chair of the employment practice law group at Boardman and Clark LLC, Madison, Wisconsin (boardmanclark.com). This is especially the case if the harassment involves touching and groping, which can be deemed assault and battery.
“Individuals can also be held liable for defamation if they spread false information, or make mocking comments, about a person’s sexuality,” he says. Finally, individuals can be held personally liable for sexual harassment against third parties such as customers, suppliers, or public visitors to the workplace.
Beyond financial loss from lawsuits and settlements, an organization with unchecked harassment can suffer a costly loss in staff morale. “Sexual harassment is a form of bullying,” explains Ford. And bullying, she says, can take a toll on performance.
“Instead of being productive, a harassed individual becomes constantly afraid of encountering another comment, another inappropriate touch, another arrival of that creeping feeling of ‘here we go again.’”
In contrast, she adds, satisfied and secure employees are great recruitment tools.
- First, that it took reasonable care to prevent and correct harassment; and
- Second, that the plaintiff did not take advantage of corrective opportunities the employer had established.
While those general guidelines are important, there are two important exceptions says Gregg:
- The first is any quid pro quo act, such as an individual being promoted in exchange for a sexual favor, or being terminated for refusing one.
- The second is any act by a top-level executive. “If I am a top manager, then my acts are perceived by the courts to be those of the organization itself,” Gregg explains.
This exception is a particular danger to smaller businesses, where just about any manager or supervisor might be perceived as a top-level manager.
With those guidelines in mind, here are some practical steps recommended by attorneys:
Step 1: Create good policies
“The number one step for protecting your business is to write policies that prohibit sexual harassment and promote a respectful workplace,” says Gregg. “And don’t just bury them somewhere in your employment handbook. Communicate them in employee orientations and continually emphasize them in staff meetings.”
Step 2: Establish a reporting procedure
“Designate properly trained individuals to whom complaints can be made,” says James J. McDonald, Jr., managing partner at the Irvine, California, office of Fisher & Phillips (fisherphillips.com).
He warns against the common mistake of requiring complainants to report incidents to supervisors, who may not have the requisite training or may themselves be offending parties.
Bear in mind that many people refrain from reporting incidents out of a fear of retaliation.
But how about the very smallest businesses – those which can’t afford the full-time services of an outside organization? “Some human resources consultants provide fractional services for smaller clients,” says McDonald. “They might, for a reasonable fee, provide an individual on site for two days a week, and offer availability by telephone hotline on other days. That resource can make all the difference when an incident occurs.”
Step 3: Train your personnel
The most carefully designed policies will only work if supervisors are trained to identify and respond appropriately to incidents of sexual harassment. “We all have to be educated,” says Ford.
All levels of personnel need training on company policies and on the established channels for reporting incidents. And everyone needs to understand they are expected and encouraged to come forward with complaints.
“Plenty of people encounter sexual harassment but hesitate to take action,” says Ford. “That’s because they have always lived in an environment where saying something about the problem makes you a coward, or not able to keep a stiff upper lip.”
Step 4: Respond quickly to complaints
Take prompt action when individuals report harassment. “One of the biggest errors employers make is not listening when people raise issues,” says Gregg. “Employers often don’t take reports seriously.”
“On the other hand, if an employer has not taken sexual harassment reports seriously, people are more likely to use outside attorneys to sue when harassment occurs,” McDonald warns.
Involve the complainant
“While you don’t want the complainant to decide what action is taken, you do want to get that person’s input on whether termination or a lesser remedial measure is appropriate,” says Harkins.
Complainants may have any number of reactions to what they have experienced. “Sometimes they say the harassment was not severe, but they reported it because they just wanted the organization to know about it,” says Harkins.
“Sometimes they just want to have a discussion, or just have the person counseled. And still other times they ask that a person be terminated for making a single, unfunny joke.”
If the remedial action does not satisfy the complainant, Harkins suggests involving the person in any new training that the company will be introducing to the workplace. That can help to provide a broader base of knowledge so that focus is taken off the individual and put onto a general improvement in the environment.
Communicate your seriousness about the issue by actively monitoring your workplace for violations.
Such monitoring should include behavior that might not yet be illegal but that has the potential to escalate, says Gregg. “When a person is nasty, surly, and engaged in behavior that is disruptive and abusive, speak up and say you expect the individual to be civil.”
Indeed, attorneys recommend being alert to any activity that reflects a disrespect for others or creates a hostile working environment. That includes making crude comments or reinforcing gender stereotypes.
Result? “Things get worse because management has issued an unspoken ‘okay’ to bad behavior.”
Failure to maintain professional distance, he says, can lead to situations that may not appear initially as harassment but could result in such charges down the road.
Backing off in such instances is a wise idea. And so is a reluctance to go one step further and engage in a dating relationship with a subordinate.
While a conscientious employer can go a long way toward creating a respectful workplace,
A second mistake is not escalating complaints high enough in the chain of command. “Higher level people, including those in human resources or in the legal department for those businesses which have them, should review every reported incident.”
Other times a complainant will ask that a person not be fired for a single infraction. “In such cases an employer might take other remedial action,” says Harkins. “But if there is a second incident of harassment the employer should move to termination.”
While every business wants to avoid the financial penalties resulting from sexual harassment,
“People are often concerned about the legal liabilities for sexual harassment, and that aspect of the problem has certainly been making the headlines recently,” says Gregg.
“But legal liability should not be what drives the topic. It should be the realization that a respectful workplace leads to higher profitability.”
Employees are more productive when they are not sidetracked by the need to protect themselves from sexual advances, says Gregg. “Create a respectful workplace not because the law makes you do it, but because it’s to the benefit of your organization and your employees.”