Understanding and Avoiding Sexual Harassment in the Workplace
Guest Author: Jessica Subach, SHRM-CP
Client Solutions Manager The Employer Group
The Employer Group (TEG) has been creatively solving payroll, human resources, and benefits administration challenges for clients for over 25 years. TEG, M3’s wholly-owned subsidiary, offers customized solutions to organizations of all sizes and industries, ranging from serving as a PEO (Professional Employer Organization) to providing full payroll services and a wide array of human resources administration and consulting.
It is the employer’s legal and ethical responsibility to create a safe and healthy workplace and one that is free of discrimination and harassment. Employers should be steadfast in ensuring they are providing a workplace that meets these requirements by modeling and holding everyone accountable in treating others with respect. This includes providing clear communication to staff and management about sexual harassment, including what it is – and isn’t, who can be the victim or the harasser, how to identify sexual harassment, and what to do when it occurs. As a best practice, employers should offer sexual harassment training upon hire and annually to both employers and supervisors/management.
Let’s start from the top:
How is Sexual Harassment Defined Under the Law?
The Equal Employment Opportunity Commission (“EEOC”) defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.
What is Unwelcome Behavior Under the Law?
As stated by the U.S. Department of State, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
- An employment decision affecting that individual is made because the individual submitted to or rejected the unwelcome conduct; or
- The unwelcome conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or abusive work environment.
Examples of Inappropriate Conduct
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- The harasser’s conduct must be unwelcome.
- The victim does not have to be of the opposite sex.
- The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
What are the Employer’s Responsibilities?
Prevention
- Develop, implement, and communicate the employer’s sexual harassment policy.
- Provide training for sexual harassment prevention.
- Communicate how to report incidents of sexual harassment.
- Supervisors should be aware of the conduct within their supervision by monitoring the work environment.
- Managers and supervisors must lead by example and refrain from engaging in conduct of a sexual nature.
Investigation
- Immediately respond to a complaint of sexual harassment and initiate an investigation.
- Interview the complainant and take action to protect the victim from retaliation or experiencing further sexual harassment during the investigation.
- Interview all relevant witnesses and the alleged harasser.
- Document the investigation results and maintain the file as an employment record.
- Take corrective action as appropriate.
Corrective Measures
- Take disciplinary action when policy has been violated.
- If the conduct in question does not violate sexual harassment policy, but is concerning, consider counseling, training, and closer supervision of the employee.
- Reduce the likelihood of sexual harassment by updating and enforcing policies, providing sexual harassment training, or restructuring the working environment and reporting relationships.
- Follow up with victims regularly to ensure they and the workplace remains free from sexual harassment.
Where is Sexual Harassment Training Mandated?
Currently, California, Connecticut, Delaware, Illinois, Maine, New York, Washington DC, New York City, and Chicago require sexual harassment training. Note that if you have a remote employee working in one of these locations, you are required to meet the training mandates. Specific information can be found on the state or municipality websites.
Key Takeaways:
Employers have a duty to provide an environment where employees feel respected and protected. Prevention is the best tool to eliminate sexual harassment in the workplace and training should be ongoing beyond employee’s time of hire.
Despite the fact you may not do business in a state or municipality requiring sexual harassment training, employers still have a duty to provide an environment where employees feel respected and protected. Offering sexual harassment training upon hire to new employees and annually to all employees are best practices to limit your risk exposure and create a healthy work environment. All employees should know what to do if they’ve been a victim of – or witnessed – harassment. And supervisors and managers should know what to do if they are informed of harassment.
Even if you’re not required by law to offer this training, be prepared for a change in the future. Being proactive on this issue is a best practice from a liability and positive work culture standpoint. Even if you have a smaller business without an HR department or manager, these training programs are an important part of creating a positive work environment and curbing workplace harassment and potential legal liability to you and your management team. Taking these steps now to not only be legally compliant, but to also provide a safe, engaging work experience for your employees.
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About The Employer Group
Since 1995, The Employer Group has provided expert human resources solutions to organizations of all sizes and across a number of industries. As The Human Resource Resource™, we specialize in all things payroll and HR-related, from providing direct deposits and preparing payroll tax forms to conducting HR assessments and creating employee handbooks. We’re also a registered PEO, which gives us the opportunity to provide a comprehensive level of service to our clients.
