Statistics compiled by the Equal Employment Opportunity Commission, other administrative agencies, and the courts indicate that allegations of sexual harassment in the workplace are declining. However, statistics don’t always represent the full picture. While claims may be down, incidents of sexual harassment could very well still be increasing. That means employers must remain vigilant and acknowledge the significance of potential problems before they arise.
Under Title VII of the Civil Rights Act and similar state laws, sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile, or offensive working environment. That is an amorphous definition subject to differing interpretations so whether behavior was “unwelcome” is often a key factor in determining whether harassment has occurred.
In general, however, any conduct of a sexual nature that reasonably makes an employee feel uncomfortable can be considered sexual harassment. The majority of sexual harassment complaints are made by women against men, but sexual harassment is gender-neutral and may include conduct directed at members of the same sex.
As a consequence, situations involving allegations of sexual harassment can fall into grey areas that defy easy answers and can cause management to avoid dealing with potential problems due to the sensitivity of the subject. For example, dating by co-workers, incidents at social outings organized by an employer, and email joking and “banter” can create situations where an employer may be understandably concerned about overreacting by prying into personal matters. In addition, the question may ultimately boil down to whether something such as a boss inviting an employee out for drinks or an important client asking an account manager out for date, cross over the line and become sexual harassment. Unfortunately, simply ignoring such situations is never the proper response, especially if the employer’s gut suggests that there might be a problem.
At a minimum, employers must implement and disseminate policies that tell employees what type of behaviors constitute harassment and that provides a way for victims to report violations of the policy. The policy should also clearly state that violators will be subject to discipline, including the termination of employment. In other words, the employer adheres to a zero tolerance approach.
Employers should also train employees about the policy during orientation and provide refresher coverage on a regular basis. In that regard, employees should be required to sign a form that the employer keeps as a record that they received that training.
Some employers have gone so far as to evaluate managers on their compliance with sexual harassment and employment discrimination policies on their annual performance appraisals, as a way of emphasizing the importance those policies.
Sexual harassment comes in two forms. The most obvious form occurs when the offender consciously engages in that misconduct, despite the fact that the employer has informed employees that such behavior is strictly prohibited. For instance, a supervisor may condition pay raises, promotions, or lucrative job assignments on a subordinate’s submission to his or her sexual advances. That type of offender generally assumes that the victim will not report their misconduct due to the fear of retaliation or that the employer will not take effective remedial measures. Employers must not discount complaints about such conduct, particularly where it is common knowledge that the alleged perpetrator and victim have had a romantic relationship.
In other cases, an employee genuinely fails to understand that his or her conduct rises to the level of sexual harassment. For example, an employee may engage in horseplay or joking with sexual overtones that makes some colleagues laugh, but other co-workers uncomfortable, even though they do not object to it. Management must intercede whenever that behavior is observed to ensure that a hostile work environment does not develop.
A properly implemented and enforced sexual harassment policy can increase employees’ efficiency by creating a more comfortable, less stressful workplace and can insulate employers from liability to employees who allege that they were subjected to unlawful harassment.
The key to the efficacy of a policy, of course, is the employer’s response to an employee’s internal complaint. For that reason, employers should emphasize to supervisors that they may not assure an employee, who confides in them about being targeted for harassment, that their complaint will remain confidential. To the contrary, all formal and informal complaints should be investigated, while assuring the complaining employee that any retaliation should be reported immediately to management and admonishing the alleged offender to refrain from such a reaction.
Whenever possible, an employer should designate a specific individual or group to investigate all complaints of harassment and train them how to conduct those investigations. That procedure enables investigators to develop expertise and better ensure uniformity in applying the policy.
An investigation should include interviews of the individuals who witnessed the harassment, a review of emails exchanged by the employee who complained and the alleged harasser, and the consideration of any other evidence that supports or refutes the complaint. Maintaining the confidentiality of the investigation always poses a challenge, so all of the employees interviewed should be reminded that the integrity of the inquiry and the reputations of the alleged victim and perpetrator could be compromised by idle chatter around the water cooler.
Recent EEOC statistics show that 62% of sexual harassment victims take no action against their perpetrators, choosing instead to tolerate the behavior. That fact highlights the importance of training employees to utilize the employer’s internal complaint procedure. Employers should make the point that effective enforcement of the policy is in the best interest of all of their co-workers and the employer’s business.
In Maryland, employers with at least 15 employees must post notices in the workplace advising them of their right to file a formal complaint with the Maryland Human Relations Commission or the EEOC. If employers take the measure described above, however, they can avoid the trouble associated with dealing with a government agency or, even worse, an attorney representing an employee who claims to have been victimized.
Please contact Bowie & Jensen, LLC if your business wants more information about implementing a sexual harassment policy or needs help defending a sexual harassment complaint.