While employers may not be able to stop all harassment in the workplace, steps can and should be taken to minimize and actively discourage illegal behavior. In fact, it is required that employers do so.
Although there are various forms of harassment that are mandated as illegal behavior in the workplace, it is sexual harassment that has been brought into prominence by the media recently. And it is this type of harassment that can be the most problematic for employers.
Employer's Obligations With Harassment
According to an article at Nolo.com,
As an employer, you have a responsibility to maintain a workplace that is free of sexual harassment. This is your legal obligation, but it also makes good business sense. If you allow sexual harassment to flourish in your workplace, you will pay a high price in poor employee morale, low productivity, and lawsuits.
The same laws that prohibit gender discrimination prohibit sexual harassment. Title VII of the Civil Rights Act is the main federal law that prohibits sexual harassment. In addition, each state has its own anti-sexual harassment law.
With the inauguration of the new federal administration, many HR observers indicated that the focus and emphasis might shift in favor of employers. However, even two years into the new administration there seems to be little, if any, change in the number of legal filings by the U.S. Equal Employment Opportunity Commission's (EEOC).
In fact, Gerald L. Maatman, Jr., Partner at Seyfarth Shaw LLP noted at the beginning of September 2018:
Whereas most assumed that the EEOC's activity would decrease under a more business-friendly Administration, the Commission has actually continued to file lawsuits at a growing rate. For purposes of context, by the end of August 2017, the EEOC had not yet filed 100 merit lawsuits.
However, to date this year, the EEOC has already filed 112 merit lawsuits. This number is especially relevant insofar as the Commission has not yet hit its traditional filing peak, i.e., the month of September. For example, in FY 2017, the Commission filed 88 lawsuits in September alone.
A significant fact for employers to be aware of in 2018 is the specific nature of the lawsuits filed by the EEOC. As of end of August 2018, the EEOC had filed at least 22 lawsuits involving allegations of sexual harassment. Some observers contend that this is partially due to the rise of the #MeToo Movement.
A recent post at JD Supra reinforced this perspective,
Charges filed with the EEOC alleging sexual harassment went up by more than 12% from the prior year. For harassment charges filed with the EEOC, the number of reasonable cause findings increased from 970 in 2017 to 1,200 in 2018. The EEOC recovered nearly $70 million dollars for the victims of sexual harassment through administrative enforcement and litigation in 2018, approximately 47% more than the total recovery amount for 2017.
In addition to increased activity from individuals, the EEOC stepped up its enforcement efforts in 2018. There was a 50% increase in the number of lawsuits filed by the EEOC against employers alleging sexual harassment as compared to 2017.
Whether this is truly relevant or not, the EEOC has issued a number of press releases since late 2017 in which it stated that "Preventing Systems Discrimination" is an agency priority. The Commission has also publicized it's efforts in filing groups of workplace harassment suits in one day.
Implications For Employers
While employers should always be up-to-date with their workplace policies, today's litigation landscape requires human resources personnel to be especially careful regarding their written policies, employee training, and harassment reporting procedures.
Although it may seem obvious to some, sexual harassment is comprised of a number of factors and subjectivity. Officially, workplace sexual harassment is defined by the EEOC as follows:
"(U)nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment 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”
The Commission adds this further explanation of questionable behavior:
"Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted)."
For employers in California, there are similar laws to be followed that define sexual harassment further for the workplace. The California Department of Fair Employment and Housing (DFEH) essentially defines sexual harassment as:
"...(U)nwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser."
Employers should take note that the state specifically adds a visual component as a form of harassment, that includes:
"leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters."
Because of the current legal environment regarding lawsuits, harassment, and sexual harassment in particular, it is in the best interests of all employers to be aggressively proactive in preventing sexual harassment in their workplaces.
Suggested Tactics for a Prevention Strategy
If your organization has not done so already, there are tactics you can employ to reduce the occurrences of sexual harassment in your workplace. While there is no "one size fits all" strategy and set of policies to implement, here are some practical tips offered by Nolo Press:
Adopt a clear sexual harassment policy. In your employee handbook, you should have a policy devoted to sexual harassment. That policy should:
define sexual harassment
state in no uncertain terms that you will not tolerate sexual harassment
state that you will discipline or fire any wrongdoers
set out a clear procedure for filing sexual harassment complaints
state that you will investigate fully any complaint that you receive, and
state that you will not tolerate retaliation against anyone who complains about sexual harassment.
In addition, regardless of what your state law might require, it is a good idea to train employees once a year or more. Employees should be taught what sexual harassment is and be clearly educated on their right to a workplace free of sexual harassment, your employee complaint procedure, and how to use it.
Some states, such as California, already require that you train supervisors and managers every two years. However, it is a better strategy to implement training at least once a year with sessions that are separate from those provided to employees. The sessions should provide ongoing education for your managers and supervisors about sexual harassment and explain how to properly deal with employee complaints.
Your Partner for HR and Workplace Management
Accurate and timely management and HR compliance practices are required for HR professionals in every business. Managing all of this can be challenging, but you do have options.
Accuchex is a reputable workforce management services provider and can not only assist you with the burden of your ongoing compliance demands, but can potentially prove to be a more cost-effective solution, as well.
Click the button below to learn what you need to know about labor law in California. For more immediate information, feel free to call Accuchex Payroll Management Services at 877-422-2824.