The Importance of a Workplace Sexual Harassment Policy
According to the Equal Employment Opportunity Commission (EEOC), the federal agency that polices and enforces anti-discrimination and anti-harassment laws, between Fiscal Year 2018 and Fiscal Year 2021, there were 98,411 charges of workplace harassment filed, with 27,291 of them being for sexual harassment.
The EEOC was created following the enactment of the Civil Rights Act of 1964, which provided broad and sweeping protections for workers on the job to prevent discrimination, retaliation, and harassment. Subsequent laws were added to the protections, expanding the sweep of the EEOC’s authority and the responsibility of employers to provide workplaces where employees can feel safe and free from acts and conditions that make them uncomfortable or even afraid.
Sexual harassment continues to be a problem in the workplace today, and employers who fail to take preventative measures, including the publishing and promulgation of a sexual discrimination policy, can face serious consequences.
If you as an employer suspect sexual harassment may be taking place in your workplace and you need to develop a strong sexual harassment policy, contact me at Chris Sanders Law PLLC.
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Employer Liability for Sexual Harassment
Two types of sexual harassment exist under the Civil Rights Act and its interpretation through court cases. First, so-called "quid pro quo". This type occurs when an employer or supervisor suggests or dictates that an employee’s benefits and promotional opportunities, for example, will be contingent upon the employee’s response to sexual advances or innuendos.
Another type is a "hostile work environment". This occurs when sexual harassment, in terms of continued conduct directed toward one or more employees, creates unease and even fear. A severe, pervasive hostile environment is traumatic, even if one's job isn't explicitly on the line.
An employer who allows either or both of these types of sexual harassment can be subject to investigation by the EEOC, which in turn can impose sanctions and mandate sexual harassment training. Employees also file against the employer.
What Is Sexual Harassment?
First off, it is important to recognize that not all incidents of sexual harassment involve a supervisor or employer harassing an employee. Coworkers can be equally responsible, as can third parties such as customers, suppliers, or vendors who frequent the premises. In any of these situations, it is the employer’s responsibility to have a sexual harassment policy in place, enforce it, investigate all reported incidents, and take appropriate disciplinary action.
As for what constitutes sexual harassment, the EEOC notes that “simple teasing, offhand comments, or isolated incidents that are not very serious” do not rise to the level of harassment, unless pervasive and repeated. The EEOC specifically lists sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”
Furthermore: “Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general.”
The Importance of a Sexual Harassment Policy
To prevent liability and adverse actions by the EEOC, as well as to ensure a safe and worker-friendly place of business, employers should develop and enforce a sexual harassment policy. The policy can be included in the employee handbook, distributed as a separate document, posted on a breakroom wall, delivered digitally, or a combination of these approaches. Whatever the delivery method, it is wise to have employees, including management and supervisors, sign off on the policy.
Though it may not be mandated by state or federal law, sexual harassment training can also be conducted, especially for supervisors who should be policing the workplace for incidents of sexual misconduct.
It is incumbent upon the employer to make sure the policy is observed by all and to immediately take seriously any reported violation, which needs to be investigated, and if warranted, disciplinary action taken. It is also essential to apply the standards – and the discipline – equally to all.
What Should Your Policy Include?
A typical sexual harassment policy can include, but not necessarily be limited to, sections covering a statement of intention or of enforcement by the employer, a definition of sexual harassment, examples of prohibited conduct, complaint procedures, and potential disciplinary measures.
A policy, of course, is only as good as the follow-up by those in charge. If the policy is published and then ignored– for instance, reports of incidents are not investigated – the policy then becomes practically meaningless. The policy must be coupled with dedication and appropriate actions.
Experienced Legal Guidance When You Need It Most
If you need to develop a sexual harassment policy at work or implement workplace changes following sexual harassment incidents, contact me at Chris Sanders Law PLLC. My practice is dedicated to improving workplaces and communities so employees can thrive. I will advise you on how to develop a sexual harassment policy and implement it in a strong and effective way.