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Do Company Sexual Harassment Policies Need Updating in the #MeToo Era?

Do Company Sexual Harassment Policies Need Updating in the #MeToo Era?


It seems like every time you turn around, there’s another story of a high-profile individual in entertainment, politics, or business who has been accused of engaging in sexual harassment, fondling, groping, or worse. Many of these high-profile people have been forced to resign, or are being sued by their accusers. In light of all of these cases and the publicity they have garnered, millions of women from all walks of life came forward to relate their own experience with workplace sexual harassment or abuse. On social media, the hashtag #MeToo was trending for weeks, which shows how widespread the problem is.

A recent NBC / Wall Street Journal Poll reported that nearly half of women working in the United States say they have faced verbal, physical or sexual harassment at work. Yet, studies show the vast majority of these women did not report the harassment, citing fear of losing their job. But as more and more women are emboldened to stand up and speak out, employers are being put on notice.

How can you help to protect your business and–most importantly–your employees?

Review Your Sexual Harassment Policy

Does your company have an employee handbook or set of written policies and procedures that are printed for each employee and/or easily accessed online? If you answered no, that’s a situation you need to rectify immediately. If you don’t have your own Human Resources (HR) department, contact Einstein HR today for help creating written company policies and procedures tailored to your organization. Even small businesses with fewer than five employees need things in writing to provide consistency in workplace matters, as well as protect you from possible legal action. We can provide you with standard employee handbooks for new hires, or customize one for your company.

We’re going to assume, that as a responsible business owner, you might already have a set of written company policies and procedures. Have you taken a look at the section on Sexual Harassment lately? In today’s #MeToo era, your company needs to have a written sexual harassment policy that is very specific as to the following:

  • What constitutes sexual harassment
  • Who to report sexual harassment to internally
  • What happens to an employee accused of sexual harassment.
  • What happens or should not happen to the accuser.

What Constitutes Sexual Harassment?

The Equal Employment Opportunity Commission (EEOC) definition of sexual harassment mentions sexual harassment as including unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature that create a hostile work environment. It is important to note that both the victim and the harasser can be either a woman or a man, and the harasser and the victim can also be of the same sex.

There are two types of sexual harassment under the law:

  • Quid pro quo
  • Creating a hostile work environment

Quid pro quo is when some type of work benefit is dependent on the employee (or prospective employee) performing sexual favors, or when the harasser threatens the employee with retaliatory action (demotion or firing, for example) for refusing to perform sexual favors. For example, a young person has come in for an interview. Once the door is closed, the interviewer says they can have the job if they perform a sexual act. And if a current employee refuses, they won’t get the promotion.

Creating a hostile work environment is when unwelcome or uninvited sexual talk or behavior is severe or so constant that it creates a hostile or abusive work environment. This is not a situation of a one-time off color joke, but a harasser who creates a hostile environment by repeatedly making sexual innuendo, sexual gestures, telling sex-related jokes, or bragging about sexual exploits or wondering aloud about an employee’s sex life.

Sexual Harassment and the Courts

Two U.S. Courts of Appeals have ruled that just how bad and rampant the alleged sexual harassment is should be looked at from the perspective of a reasonable woman, saying “a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.” The U.S. Supreme Court has ruled in Oncale v. Sundowner Offshore Services, Inc. that how bad the harassment is should be judged from the perspective of a reasonable person in the plaintiff’s position. That case involved two men.    

In regards to your liability as an employer, SCOTUS has ruled that you as an employer you are always liable for a supervisor’s harassment which results in a positive or negative employment action  such as:

  •         Hiring or Firing
  •         Promotion or Denying a Promotion to a Qualified Person
  •         Reassignment With Negative Consequences (Lower Pay, Relocation, etc.)
  •         Major Increase or Decrease in Employee Benefits (Pay, Bonuses, etc.)

If the alleged victim of harassment has not suffered any employment action, you as the employer may be able to avoid liability if you have a written anti-harassment policy and complaint procedure, and you are able to say that the employee didn’t use the official procedure. If the employee counters that they had a fear of reprisal by using the official procedure, (such as the procedure calls for them to report harassment to their supervisor, when the supervisor is the alleged harasser) then you as the employer must prove that such a perception was unreasonable.

What You Can Do To Avoid A Sexual Harassment Lawsuit

It’s important to have written anti-harassment policies and complaint procedures, no matter how big or small your organization is. You may also want to consider various kinds of training such as seminars, videos, etc.

In addition, there are several other things you can do:

  • Set the Tone at the Top:As the bos, you and your top management people must lead by example. If your supervisors or employees believe top management thinks sexual harassment is no big deal, they may be more likely to engage in bad behavior. Make sure your employees know they won’t face retaliation if they report sexual harassment.
  • See Something, Say Something:Encourage your employees to speak out. Set up several ways of reporting sexual harassment, where an employee can report an incident to several different people in the organization, and not just one individual. That person could actually be the harasser. Because employees are often afraid to report being the victim of harassment or reporting harassment they have witnessed, it’s also good to have a way in which an employee can lodge an anonymous sexual harassment
  • Promptly and Thoroughly Investigate All Complaints:No matter who they are against. Make sure the person investigating the complaint(s) is impartial.
  • Take Immediate Action. If an investigation finds a complaint of sexual harassment is valid, take swift and appropriate action to show your other employees that sexual harassment is completely unacceptable, and offenders will face consequences. First-time offenders could face a pay cut, mandatory sexual harassment training and an official note on the incident for their personnel file. If the employee’s actions are severe or you find they have been harassing more than one person over a period of time, you may need to suspend or fire them outright.

If you want to save money on payroll and HR duties, fill out the form to get a FREE quote from Einstein HR. Call us at 770-962-1700 or fill out our website’s contact form to get started. You’ll be glad you did!

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