Risk Managers' Forum
Preventing sexual harassment in the workplace
Prevention reaps benefits for both employer and employee
By Steve Carter, JD, ARM
Compared to other employment practices exposures, sexual harassment presents unique management problems—for several reasons.
First, sexual harassment exposes an organization to vicarious liability for the actions of its employees and others who frequent the workplace. In other employment practices exposures, typically discrimination, an organization is directly liable for actions that it deliberately and knowingly, though possibly ill-advisedly, takes regarding one employee or a group of employees. In sexual harassment situations, however, the organization may be held vicariously or indirectly liable for workplace conduct that is virtually invisible to management at the time it occurs. Verbal, visual, and physical exchanges between people in the workplace that typically lead to sexual harassment complaints often occur in private when no one, especially management, is around to observe or prevent it.
Second, even when inappropriate conduct is out in the open, not everyone who happens to see or hear it will interpret the conduct as being offensive or sexually harassing or, if they do, object to it or report it.
Third, a sexual harassment complaint, once surfaced, can be extremely difficult to investigate and resolve. For everyone directly involved, especially accuser and accused, a sexual harassment complaint is extremely embarrassing. Accusers, once they have come forward, may subsequently decide to withdraw their complaints. Sexual harassment complaints are also wrenching for those who have affiliations with one or all of the parties involved. These bystanders, who may be asked to corroborate or refute evidence in the investigation, are often very reluctant to cooperate for personal reasons or reasons entwined with office politics.
Fourth, sexual harassment complaints, from a management perspective, create problems beyond the mere allegations. They not only have the potential to expose the organization to significant legal costs and possible damages, but they also have the potential to seriously disrupt harmonious working relationships and, therefore, productivity. If aired in public, sexual harassment complaints can also tarnish the organization’s reputation in the community.
Preventing sexual harassment in the workplace, though difficult, is critically important. Fortunately, federal and state courts that have wrestled with the complex issues present in sexual harassment litigation have identified three steps an organization should take to prevent sexual harassment as well as liability for incidents that may nevertheless occur.
Step 1—Develop a Written Sexual Harassment Policy and Procedures.
To develop a policy and procedures, an organization should first craft a workable definition of “sexual harassment.” A good starting point is the U.S. Equal Employment Opportunity Commission’s definition, which encompasses both types of sexual harassment: “quid pro quo” and “hostile environment”:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
With the EEOC’s definition as a starting point, an organization should then tailor this basic definition to incorporate the unique challenges within its own environment. For example, educational institutions generally include language to deal specifically with the presence of students on campus and their unique relationships with other groups within the college or university. Organizations often include provisions addressing their responsibilities toward third parties who frequent the workplace and may be the sources or targets of sexually harassing conduct. Policies for organizations whose employees work outside of the premises should contain provisions that proscribe unacceptable off-premises conduct.
As a practical matter, many organizations incorporate sexual harassment into a comprehensive policy on general harassment. In addition to sex, general harassment policies typically include the federally recognized categories of race, color, religion, national origin, disability, and age. Where a specific state’s statutes go beyond the federal categories, a general harassment policy may include prohibitions on harassment based on familial status, marital status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information, or liability for military service, and possibly others.
Finally, the policy must clearly establish procedures for reporting complaints. Employees must know to whom they can make complaints, especially complaints involving supervisors. The reporting procedures should also specify to what degree complaints will be handled confidentially and should include an assurance that any employee who makes a good faith complaint will not be retaliated against. To emphasize the organization’s commitment to preventing sexual harassment, these procedures should put all employees on notice that legitimate complaints will result in disciplinary action against the offender up to and including termination.
To craft policy language and identify essential provisions, copies of other organizations’ sexual harassment policies or model policies from professional associations can be extremely helpful. Many are available on the Internet.
Step 2—Distribute the Sexual Harassment Policy.
After the policy has been drafted, legally reviewed, and adopted by the organization, the policy should be distributed with a cover letter from the CEO. The policy should be distributed to each member of the organization and also to others who interact with the organization on a regular basis. Depending on the type of business, these third parties might include vendors, independent contractors, customers, students, service providers, consultants, etc. The distribution should be documented by requiring each person to acknowledge by signature having received a copy.
Step 3—Educate the Workforce and Train Supervisors.
A mandatory education program for all employees should be initiated immediately after the adoption of the sexual harassment policy, reinforced at regular intervals thereafter, and incorporated into the organization’s new employee orientation program. At minimum, the training should:
• Emphasize the organization’s commitment to providing a harassment-free workplace.
• Explain in detail what conduct constitutes sexual harassment, including the differences between “quid pro quo” and “hostile environment” types.
• Familiarize employees with the organization’s procedures for reporting incidents of sexual harassment.
• Apprise employees of the range of disciplinary consequences for legitimate complaints.
• Provide employees with coping strategies to handle minor incidents of harassment before they become serious issues.
In addition to educating the workforce at large, supervisors must be trained on their responsibilities for preventing and handling sexual harassment complaints when they do occur. Supervisors should receive training on identifying potential problems, proactively intervening to prevent complaints, and handling a complaint when made. Supervisors also need to know how to handle anonymous complaints and complaints by an employee who either refuses to identify the perpetrator or submits a complaint “just for the record” but asks that no action be taken.
Sexual harassment training can be provided within the organization by qualified individuals, typically in the human resources or legal department. Outside the organization, training may be available from law firms, insurance companies’ risk management departments, or consultants. Many sexual harassment training programs are commercially available on videotape or compact discs and online. Many of the online programs are interactive and can provide the employer with information on who has successfully completed the training. One issue an organization should consider is whether a commercial training program is an adequate substitute for personal instruction or should be used only as a supplement.
An organization that diligently takes these three steps will significantly reduce sexual harassment complaints and protect the organization from costly litigation. More important, it will also reap intangible benefits by fostering a workplace that is welcoming, respectful, and friendly to all employees. *
Steve Carter, JD, ARM, has been a risk management and human resources consultant since 2006. Previously he “wore several hats” as risk manager, human resources director, and institutional compliance officer at Camden County College in New Jersey. He began his insurance career working in CIGNA’s major claims department. Before entering the insurance business, Steve was a career officer in the U.S. Army’s Judge Advocate General’s Corps.