March 9, 2018

Sexual harassment continues to make news.  Although much of the attention has focused on the powerful and famous, sexual harassment can occur in any business, and employers ignore the problem at their own peril.

Now is the time to review your sexual harassment policy.  Does the policy include definitions?  Don’t assume that harassers or their targets know what sexual harassment is. Your policy should explain that unwelcome advances and sexual conduct are inappropriate, as are sexual jokes, innuendo, comments, and sexually suggestive materials.  The policy should also expressly prohibit superiors from making submission to sexual advances a condition of a subordinate’s employment, continued employment, or good evaluation. The policy should state that conduct that unreasonably interferes with work performance or creates an intimidating, hostile or offensive working environment is prohibited.  It is not the intent of the harasser but the effect on the target that determines whether the behavior is harassing.

Does the policy include a reporting or complaint procedure? Is there an alternate if the person receiving complaints is the harasser?  Many employers tell employees to report but don’t specify to whom.  Or, the employer specifies only one way to report never considering that the designated person could be the harasser.  Reporting doesn’t have to be complicated.  A simple form can be developed.  The form should include the name of the accused harasser, the date (or dates) of the behavior, a description of the behavior, names of witnesses, and (optional) the name of the person reporting. (A final decision about harassment, however, should never be made solely on anonymous reports.)  Oral or in person complaints should be allowed.  And an alternate should always be provided.  For example, “Complaints should be made to the HR Director.  If reporting to the HR Director is not possible, complaints should be made to the owner.”

Does the policy have investigation guidelines?  Prompt, timely investigation is essential as part of an appropriate response to complaints of sexual harassment.  Provide short but sufficient deadlines, allowing for extensions only if illness or absence prevent completion of the process.  For example, “All complaints will be investigated within five (5) work days of a complaint being filed. Any reasonable delays (e.g., the unavailability of witnesses or parties due to illness) will be noted in the investigative file, and the investigation will be completed as soon as possible following the delay.”

Does the policy contain anti-retaliation provisions?  Complaining parties and witnesses – as well as the accused – should be reminded that no adverse action can be taken against employees because they complained of harassment or participated in the investigation.

Finally, are employees trained regularly?  Regular training reduces the risk of inappropriate behavior or confusion regarding your company’s sexual harassment policy.  Training can also demonstrate a good faith effort to prevent and combat sexual harassment.  Schedule training for managers and for employees to ensure that your workforce knows what behavior is inappropriate and how such behavior should be reported.

Need help with policy revisions, training or investigations?  Contact me.  I can provide custom solutions for your business.

Jean Novak is co-chair of the Employer-Employee Relations Practice Group and member of the Business Services and Public and Non-Profit Practice Groups. She can be reached at 412-281-5423 or at jnovak@smgglaw.com.