The workplace should be a comfortable, safe environment for all staff. Unfortunately, that's not always the case. While it's not the easiest topic to discuss, it's crucial that you address sexual harassment concerns right off the bat.
To do your part in creating a positive, respect-driven workplace culture, your business should develop and implement a comprehensive anti-harassment policy. This policy should be included in the employee handbook and prominently displayed throughout the workplace.
"Employers who do not communicate what is acceptable and unacceptable under their sexual harassment policies cannot expect employees to comply with them," said Katherin Nukk-Freeman, co-founder of SHIFT HR Compliance Training. "You also run the risk that employees will not raise concerns, and therefore, employers will not be able to address the issues if you don't discuss the policies."
You should also continuously review your existing policies and make them apparent to each individual. Here is a brief primer on how to create a nonthreatening work environment and limit your business's potential liability in the face of sexual harassment claims.
1. Clearly define sexual harassment to your workers.
Some people assume sexual harassment is a term reserved for nonconsensual physical contact, but it involves much more than that – and it's critical that you make this clear to all workers.
The U.S. Equal Employment Opportunity Commission defines sexual harassment as a form of discrimination that violates Title VII of the Civil Rights Act of 1964, which prohibits unfair employment practices and discrimination based on sex (including pregnancy, gender identity and sexual orientation), age (40 or older), color, national origin, race, religion, disability or genetic information. Sexual harassment specifically consists of unwelcome conduct and behavior of a sexual nature that creates an uncomfortable and often hostile work environment.
"Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets, name-calling, physical assaults or threats, intimidation, ridicule or mockery, insults or putdowns, and offensive objects and pictures," explained James Baiers, chief legal officer at Trion Solutions, which manages HR, payroll, benefits and insurance for small businesses. "To be unlawful, the conduct must create a work environment that would be intimidating, hostile or offensive to a reasonable person."
Federal laws apply to companies with 15 or more employees. However, smaller employers should check if there are any other laws in their area that apply to their business. Labor and employment lawyer David Miklas advises reviewing state laws and even local city and county ordinances.
Workplace sexual harassment typically falls under two categories: quid pro quo and hostile work environment.
Quid pro quo: This translates loosely from Latin as "this for that" and refers to when job-related benefits are offered in exchange for sexual favors. In this sort of situation, an employer or another person in a position of power will use employees' submission to or rejection of sexual advances in making decisions about their employment (a promotion, pay increase, termination, etc.). A common example of this would be an employee being demoted for refusing to date a supervisor.
Hostile work environment: This occurs when comments and conduct are so inappropriate that the workplace becomes intimidating, offensive, demeaning or abusive. This sort of behavior can be perpetrated by anyone in the workplace, including co-workers, vendors and customers. Examples of this conduct can include sexual jokes, display of pornographic photos or repeated sexual advances.
2. Hold all employees to the same standards.
The line between the professional and personal is often blurred in small businesses that employ family and friends. This can create an overly casual environment with few boundaries and where inappropriate comments and behaviors can easily arise.
"Familiarity taken too far can breed ... employer liability," said Carol Gordon, human resources professional and CEO of Carol Gordon Consulting. "Nicknames, discussions of people's sex lives, touching, profane language and stereotyping are all areas that need to cease to exist. This takes work, with management setting the tone."
When employees hear owners or managers making inappropriate comments with friends or family in the workplace, they may interpret that this sort of behavior is acceptable across the board. In turn, they may feel like they cannot report their concerns because they will be dismissed or not taken seriously by management.
"Employers need to clearly communicate their sexual harassment policy and take any violations very seriously," said Nukk-Freeman. "Employees must know that their employer is committed to a harassment-free workplace from the top of the organization down."
3. Establish a positive company culture and shared values.
A company's management must lead by example, creating a workplace culture based on respect, civility, diversity and inclusion. This commitment needs to be carried out in hiring practices, highlighted in core company documents such as vision statements, modeled in daily interactions and clearly communicated to employees at all levels of the organization.
"An organization reflects its leadership's values," said Scott Cruz, senior counsel at Clark Hill, which represents employers in employment law cases. "If the leaders do not demonstrate a commitment to fair and impartial handling of sexual harassment allegations, employees will not feel comfortable nor supported in the reporting of inappropriate behavior."
"In today’s #MeToo era, companies must do whatever they can to strengthen their culture and core values so that they leave no room for the types of systemic sexual harassment issues that we are seeing," added Nukk-Freeman. Rather than simply educating employees on the legal matters, practice empathy and compassion, she said.
4. Offer an anti-harassment training program to all personnel.
Companies should provide training on their expectations regarding workplace behavior, including sexual harassment. According to Laura Handrick, HR analyst at Fit Small Business, training can be as simple as a group review of policies with a discussion of prohibited behaviors or as formal as a classroom session with evaluations.
These programs should focus on innovative approaches such as bystander training, which focuses on empowering co-workers with the tools to intervene when they witness harassing behavior.
Additionally, "employers need to train their supervisory employees – who are the front line in most workplaces – to understand what type of conduct is prohibited under the sexual harassment policy," said Nukk-Freeman. "They need to know when to elevate issues to human resources and take their obligations seriously in this regard."
It's not always easy to recognize these offenses, especially if it goes on behind closed doors. Harassment can take place during out-of-office events or even on social media. But it's crucial to address any red flags, even if you feel you're being too cautious.
"The standard under the law is that if employers/supervisors 'know or should have known' that sexual harassment was occurring, they have an obligation to step in and stop the conduct and make sure it does not reoccur," said Nukk-Freeman. "Most managers are not aware of the standard they are being held to."
5. Institute a fair and timely complaint and response protocol.
Many victims of sexual harassment never report it. The reasons vary widely, but they often include not knowing who to report it to, fearing retaliation or feeling like the accusation will not be taken seriously. To address these concerns, businesses need to have clear procedures for reporting grievances and a plan in place for the prompt and impartial investigation of claims.
In small businesses where workers feel that the team is too small to ensure anonymity, it is especially necessary to have multiple avenues for reporting incidents that allow employees to bypass their immediate supervisors. These can include phone, email, and in person with appropriately identified individuals and management, said Cruz.
"Many companies utilize a 24/7, third-party tip line allowing for the reporting of workplace allegations," he added. "The reporting may include anonymous complaints and should be well known throughout the organization."
Furthermore, businesses need to be ready to conduct thorough investigations and use external and objective resources if necessary. They also must be ready to take immediate action to resolve the issue.
Cruz advised having a core team in place to assess allegation information, give counsel on the risk and liability of the organization, provide appropriate resources for the victim, and make sure the privacy and rights of both the victim and the alleged offender are protected. This, he said, goes a long way in developing a culture of responsiveness.
Additional reporting by Paula Fernandes. Some source interviews were conducted for a previous version of this article.