Sexual harassment remains a big problem in the workplace today, for businesses big and small. Before your business faces a sexual harassment claim, it’s important to understand what constitutes sexual harassment and how to create a policy to prevent it from happening at your company.
Defining sexual harassment
A 2018 Stop Street Harassment report revealed that 38% of women and 13% of men suffer sexual harassment on the job.
Additionally, the 2018 Hiscox Workplace Harassment Study foundthat 41% of female employees and over one third of all workers say they’ve been harassed at work; 78% of those accused are men, and 73% hold a senior position to the accuser; and 45% of employees have observed a co-worker’s harassment in the workplace.
The Equal Employment Opportunity Commission (EEOC) reportedthat sexual harassment claims for the year ending September 30, 2018, increased 12% over the prior year.
Timothy Ford, employment law attorney with Einhorn Harris, says the definition of sexual harassment varies from state to state.
“Generally, sexual harassment is defined, consistent with the EEOC, as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature,” said Ford. This is also true when one’s job status is potentially impacted by their response to the harassment.
The EEOC clarifies that the harassment does not have to be of a sexual nature; it can include offensive comments about a person’s sex or women in general. And, contrary to belief by some, both the harasser and the victim can be either a man or woman or the same gender.
Jessica Fink, law professor at California Western School of Law, adds that there are two types of sexual harassment: quid pro quo and hostile environment. With the former, often perpetrated by a manager or supervisor, sexual harassment arises when there are express or implied demands made for sexual favors in exchange for some benefit—such as a promotion or raise—or to avoid some negative treatment like termination or demotion, Fink said.
With the latter, sexual harassment arises when sexual speech or conduct in the workplace is sufficiently severe and pervasive to create an intimidating or demeaning work environment, said Fink.
Federally, sexual harassment violates Title VII of the Civil Rights Act of 1964, but only if you employ 15 or more workers. Under Title VII, a charge of discrimination must be filed within 300 days of the acts that give rise to the claim.
“But many states and jurisdictions have enacted legislation that covers all employers, regardless of the size,” says Ford.
Your policy needs to be clearly articulated and distributed to every employee in the employee handbook.
Thea Ducrow, authorof “Sexual Harassment Explained: How to Save Money & Increase Profits”
Why small businesses need to take sexual harassment seriously
Ask Midge Seltzer, co-founder and executive vice president of Engage PEO, why every business—not just the Fortune 500—needs to be prepared with a sexual harassment policy in place, and she’ll tell you that it simply makes good business sense.
“Regardless of the size of your company, in today’s social media conscious public, being in the news or on Twitter because your company is accused is bad for business, employee retention, recruitment of top employees, and customer relations. A major incident can significantly damage your company’s reputation,” says Seltzer.
There are other direct and indirect costs associated with sexual harassment to consider, as well.
“An unhealthy workplace incurs the direct costs of increased rework and sick days, wasted salaries, and employee turnover,” said Thea Ducrow, author of “Sexual Harassment Explained: How to Save Money & Increase Profits.”
“Perhaps the most compelling reason for all employers to give this issue attention is the potential harm that can arise to employees themselves if they are victims—harm in terms of mental and physical health, among other concerns,” Fink said.
There’s your bottom line to think about, too, as a filed sexual harassment charge or lawsuit can inflict serious financial damage. Consider that employers have forked over almost $1 billion between 2010 and 2017 to settle harassment charges filed with the EEOC, based on EEOC data.
“Since 2010, employers have paid out $698.7 million to employees alleging harassment just through the EEOC’s administrative enforcement pre-litigation process,” said Fink. “That number doesn’t even include damages that might have been collected by plaintiffs who proceed to litigate in court, and it doesn’t include attorney’s fees associated with litigation.”
How to create and implement a sexual harassment policy
Ducrow says the best way to prevent sexual harassment in your workplace is to implement the three ‘P’s’: policy, procedures, and practices.
“Your policy needs to be clearly articulated and distributed to every employee in the employee handbook. Procedures need to be developed that show employees that sexual harassment is taken seriously and acted upon quickly,” Ducrow said. “Practices include having trainings where employees at every level are educated about sexual harassment and include practical steps taken to make the environment one that discourages sexual harassment.”
Seltzer’s recipe for an effective sexual harassment company policy includes clear statements regarding
- Zero tolerance, noting that harassment, sexual or otherwise, will not be tolerated at your company;
- Identification, explaining what constitutes harassment;
- Instructions, advising what an employee should do if he/she believes they are being harassed, including to whom in the organization the harassment should be reported;
- Consequences, distinctly outlining the repercussions of violating the anti-harassment policy;
- Managerial responsibilities, requiring members of management to immediately report the harassment to a designated company executive; and
- Retaliation prevention, prohibiting retaliation for making a harassment complaint in good faith, and what an employee should do if he/she believes retaliation has occurred.
“While the policy may allow for the employee to report a harassment complaint to his or her supervisor, the policy must allow the employee to bypass this supervisor in case the supervisor is the individual harassing the employee,” Seltzer said. “This policy should be in plain, clear language so that employees are aware of the policy, the expectations of compliant behavior, and what to do if they feel they are being harassed.”
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