Avoiding Liability for Sexual Harassment
Educate supervisors and rank-and-file employees about how to recognize and avoid workplace harassment. It's cheaper than the average defense of a harassment charge--$300,000, says Anne Covey, head of the national management law firm Covey & Associates and a member of the Human Resource Management News board of advisors.
In late June the Equal Employment Opportunity Commission issued guidelines on employer liability for harassment in the workplace. The guidelines follow up on two cases last year in which the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors.
Management must have a clear policy that addresses employee concerns and should conduct prompt investigations, even when there appears to be no basis for a complaint. Covey's rule of thumb is to begin an investigation no less than 48 hours after a complaint is made.
" Let employees know that when they come to you with a problem it will be addressed and there will be no retaliation. Let them know they can go to anybody in management. The bottom line is you want employees to feel comfortable talking about this sensitive problem," she says.
If the company finds harassment has occurred it should apply a reasonable disciplinary action to remedy the situation. If no determination can be made, the EEOC guidelines recommend that the employer undertake additional preventive measures such as training and monitoring.
Trend Toward Outsourcing Investigations
The most recent employment law trend is outsourcing investigations, Covey says, because " an employee feels more comfortable with someone who is not biased. And when you are working with someone who is trained, the documentation is better substantiated."
She warns that plaintiffs' attorneys will be looking for any loophole. " They don't want to go after an individual harasser, they want to go after the employer by attacking the person who conducted the training program or the investigation."
To defend itself, the company must train not only supervisors but all employees to ensure they understand their rights and responsibilities. " Employers think if an employee knows too much, he or she may file a lawsuit. But that's not what I've found in all the times I've taught. People just want assistance," Covey says.
Trainers need good credentials and should be well versed in what constitutes sexual harassment from the legal perspective.
Finally, constantly monitor the workplace. " You've got to start looking at small stuff or it will grow," Covey advises. If someone does or says something inappropriate, " Pull the person aside. Be respectful, but give them an education right there. Often they are not even aware. Be their mirror."
EEOC Recommends Clear Anti-Harassment Policy
The EEOC urges employers to establish, publicize and enforce anti-harassment policies and complaint procedures which make clear that the company will not tolerate harassment based on sex (with or without sexual conduct), race, color, religion, national origin, age, disability, or protected activity such as opposition to prohibited discrimination or participation in the statutory complaint process.
An anti-harassment policy and complaint procedure should contain, at a minimum, the following elements:
A clear explanation of prohibited conduct;
Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
A clearly described complaint process that provides accessible avenues of complaint;
Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
A complaint process that provides a prompt, thorough and impartial investigation; and
Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred. The company should give every employee a copy of the policy and complaint procedure and redistribute it periodically.
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