A recent survey shows that small businesses are much less likely than their larger counterparts to have formal sexual harassment policies, making them much more vulnerable to claims of sexual harassment.
Regardless of size, all employers should have appropriate written sexual harassment policies and training procedures (including classes, videos, and the like) in place. While the applicable federal law applies only to employers with 15 or more employees, state laws often have a lower threshold, and in many states, including Oregon, the laws apply to all employers.
Employees at all levels should participate in anti-harassment training and, if your company doesn’t already have an employee handbook that covers this issue, it’s time to change that.
The handbook should clearly describe what sexual harassment is, providing examples, and including a statement that such harassment will not be tolerated.
The handbook should also provide an outline of the investigation process and state that retaliation will not be tolerated against employees making sexual harassment complaints, appearing as witnesses or acting as investigators. Further, the handbook should make clear that violation of the policy may result in disciplinary action, up to and including termination of employment.
Your policy should invite employees to report harassment by vendors, customers and independent contractors, not just other employees, since in some circumstances, an employer may have liability for those interactions as well.
The process for reporting problems should be carefully considered, because an employee should never be expected to report to the person harassing them. In other words, your handbook might provide that complaints will typically go to an employee’s supervisor, but one or more alternate persons should be identified as well, since the supervisor might be the harasser.
Don’t promise absolute confidentiality to employees, since the complaint will be shared with the alleged harasser as well as relevant supervisors within the company. It may also need to be shared with witnesses and may even become the subject of legal proceedings.
What if you hear about potential harassment? It should be promptly and thoroughly investigated, whether a formal complaint has been submitted or you’ve just heard rumors around the office.
An employer is always responsible for harassment by a supervisor if the harassment results in a “tangible employment action,” though preventive measures often help to lower the damage award. A “tangible employment action” is defined as a significant change in employment status, such as firing, promotion, demotion, reassignment and compensation changes.
If the harassment does not lead to a tangible employment action, the employer is still liable for harassment by a supervisor unless it proves that it exercised reasonable care to prevent and promptly correct any harassment and that the employee unreasonably failed to complain to management or to otherwise avoid harm.
An employer is liable for harassment by coworkers if it knew or should have known of the unlawful conduct unless it can prove that it took immediate and appropriate corrective action.
As you can see, it is vital that an employer create, maintain and follow appropriate anti-harassment policies in order to reduce or avoid liability for its agents’ conduct.
The Equal Employment Opportunity Commission (EEOC) website includes a number of resources for employers, including:
Facts About Sexual Harassment
Promising Practices for Preventing Harassment
Policy Guidance on Current Issues of Sexual Harassment
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors
EEOC Enforcement Guidance on Retaliation and Related Issues
Please feel free to contact us if you need help drafting or updating your company’s employee handbook or if you believe you have been harassed at work.
