Employees have the right to perform their job in an environment free from any and all forms of harassment. Sexual harassment has gained notoriety in recent years primarily through media coverage and the “Me Too” movement. Sexual harassment is considered to be a form of sex discrimination under Title VII of the Civil Rights Act of 1964, and claims may take one of two forms: Quid pro quo and hostile work environment. The Latin phrase “quid pro quo” means “this for that.” In the context of sexual harassment, it is when a supervisor, or one in a position of power, requests a sexual favor of a subordinate in exchange for a job benefit like a raise or a promotion. A hostile work environment is created when anyone in the workplace (co-worker, supervisor, client) engages in offensive behavior of a sexual nature that impedes an employee’s ability to perform his or her job. An example might be a co-worker looking at online pornography during work hours or telling lewd jokes.
Offensive behavior does not have to be sexual in nature to constitute harassment. Non-sexual harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Offensive conduct can take many forms and may include slurs, epithets or name calling, threats, intimidation, ridicule or mockery, and offensive pictures. The offender need not be in a position of power over an employee to engage in illegal non-sexual harassment and can be a co-worker, vendor, subordinate or supervisor.
Components of a Well-Written Anti-Harassment Policy
Harassment has no place in the work environment, is illegal and can expose a company to serious legal risk if not handled appropriately. The best line of defense is prevention and starts with a clear, well-written policy prohibiting all forms of harassment in the workplace. The policy must unequivocally state that harassment based on any protected characteristic will not be tolerated. The policy should define the two types of sexual harassment and explain non-sexual harassment, including examples of all harassment types. The policy should provide at least two avenues for reporting harassment and explain how an investigation will be conducted. Employees must know that in no way will they be retaliated against for filing a legitimate claim and that an employee found to have violated the policy will be subject to discipline, up to and including termination.
Conduct a Timely Investigation
A formal or informal report of harassment must be taken seriously and promptly investigated by an independent, third party, usually Human Resources. Not only is a thorough investigation a sound business practice, under several employment laws (e.g., Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act), employers are legally obligated to investigate complaints in a timely manner and take appropriate corrective action if necessary. The investigator should tell the complaining employee and all individuals involved that every attempt will be made to keep information obtained during the investigation confidential. However, some information must be revealed to the accused and potential witnesses but will be shared only on a need to know basis. In some cases, the complaining party may need to be separated and protected from the alleged accuser to provide interim safety. In-house legal counsel, if available, should be involved in the investigation.
Provide Closure for all Parties
Once the investigation is complete and a decision made, the employer should notify both the complaining employee and the accused of the outcome. All parties should be reminded to maintain the confidentiality of the investigation. The investigator should follow up with the claiming party at a reasonable point after the investigation to ensure he or she is settling back into work and to ask if any additional support is needed. Should the investigation reveal harassment occurred, appropriate corrective action must be taken against the offending employee.
Document Investigation Results
Employers should create a record of all steps of the investigation, including the claim itself, employees interviewed, interview notes including date, time and duration of the interviews, investigation findings and any corrective action taken. This documentation provides a timeline and investigation road map should the employer face a lawsuit in the future.
Working with Smart HR
Smart HR can help you draft a concise, easy to understand anti-harassment policy that covers all your bases. Should your management team need compliance training to learn more about Title VII, the ADA, the ADEA and other employment laws, Smart HR has seasoned trainers who can deliver a training module specifically for non-HR staff such as supervisors and managers. If you find yourself involved in a harassment situation and want an independent, third party to conduct an investigation, Smart HR can assume this role from claim intake to documenting the investigation results. No matter the issue or situation, Smart HR can help. Call today.