HR

The HR Perspective on Workplace Sexual Harassment

December 13, 2017

Workplace Sexual Harassment is a hot topic right now. Learn the definition of sexual harassment and what steps you should take to protect your employees.

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Workplace sexual harassment is trending on the news and social media these days. High profile figures in entertainment, print and broadcast media, the tech industry, and the political arena—both conservative and liberal; local and national—are taking hits from allegations made against them.

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It seems that not a day goes by without another finger pointed, and consequently another man steps down from a powerful position or hotly denies the claims made against him.

Let’s be clear though, men can also be victims of workplace sexual harassment.  The behavior seems systemic and epidemic; an April poll conducted by YouGov found that 23 percent of adults in the United States have experienced some form of sexual harassment.

With #MeToo going viral, and more and more victims feeling empowered to come forward, what is the best way for an HR Manager to handle complaints?

What is Sexual Harassment?

First, it’s important to understand the legal definition of sexual harassment. The EEOC defines it as any harassment based on a person’s sex. Sexual harassment does not have to be sexual in nature—though this has been the nature of recent accusations. It can include remarks that are offensive to either sex. And it isn’t limited to exchanges between men and women; the offender and victim can be the same gender. The harasser is not necessarily in a power position. Peers, subordinates, vendors, and clients can perpetuate the behavior.

When does it Become Harassment?

But how do you differentiate between truly harassing behavior and teasing or offhand (and poorly thought out) comments? Harassment is unsolicited, unwanted, and persistent. It creates a hostile or offensive working environment or results in an adverse employment decision, such as the victim being fired, demoted, or leaving due to the harassment. In today’s increasingly volatile environment, are offhand comments subject to disciplinary action?

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Sharon Jautz

In a word, yes. Address any offhand comments because they have caused someone distress. HR professional Sharon Jautz says if you wouldn’t say it to your mother or grandmother, don’t say it to a colleague. With over 30 years of experience, she’s seen it all, and has dealt directly with sexual harassment complaints.

“There’s a big difference between a dumb, one-off remark and a pattern of troublesome behavior or comments,” Sharon explains. There are levels of harassment, starting with the off-color comment and escalating to serious and egregious behavior, including explicit language, inappropriate touching, and exposing body parts.

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When it comes to a thoughtless comment or innocent-but-inappropriate touching, a conversation must take place to raise awareness and ensure the behavior isn’t repeated. For more serious and ongoing offenses, there are more serious consequences.

Develop a Policy

Make sure your company has a harassment policy that addresses discrimination, harassment (including sexual harassment), and retaliation; as well as consensual relations that may develop in the workplace. The Society for Human Resource Management provides a template for nondiscrimination and anti-harassment policies and complaint procedures in compliance with Title VII of the Civil Rights Act of 1964.  Journey recommends you have this reviewed with a local attorney before you implement any important policy.  Please ask Journey for a recommendation to an attorney that specializes in this area if you need trusted counsel.

“Educating managers and staff is a good practice,” explains Sharon.  Some states mandate annual or bi-annual training. That can take place in person or online, and typically lasts only an hour or two.

The workplace has been fertile ground for meeting potential romantic partners. That can become dicey, especially if the relationship sours and one person has a power position over the other. A well-written policy allows for consensual relationships within certain parameters. For instance, the people involved in the relationship should not have any influence over each other’s positions. It’s best if they don’t work in the same departments. If that’s the case, one should be reassigned or even resign. Transparency is paramount: incorporate a disclosure clause in the policy.

You’ve Received a Complaint. Now What?

First things first: have all employees made aware of your company’s anti-harassment policy and any updates? Is it posted somewhere? Do they know that sexual harassment claims are investigated thoroughly and could end in termination?

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Next, says Sharon, a thorough investigation must take place. “It’s not enough to just take Nancy’s word that Bob has been harassing her and we discipline him,” says Sharon. “Corroboration from more than one person is enough confirmation that there is a problem.”

If there is no corroborating evidence, and the situation becomes a he said/she said issue, the situation still needs addressing so that employees have a better understanding of what is acceptable behavior and what is not. Remind everyone concerned about the policy.

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Make sure the complainant and the accused both know that retaliation and unethical behavior are unacceptable.  Provide assurances to both parties that you will conduct a thorough and just investigation.

Privately discuss the situation with the person filing the complaint. Listen carefully, take notes, and document relevant facts such as dates, times, situations, witnesses, and any other pertinent information. Talk to witnesses. Ask open-ended, non-leading questions that disprove or support the allegations. Meet with the accused. Treat him/her with the same respect and consideration given to the person filing the complaint and any witnesses.

Once you compile all the information, you may need to consult with an attorney to seek advice on the next best steps. If a clear violation of policy has been committed—or not, you may be able to forego that meeting. It’s up to you to determine if it’s necessary and can help nip any future issues with this complaint in the bud.

Final Steps

After a determination, apply the appropriate discipline to the appropriate parties. Make work or assignment changes as necessary. Record and document everything and keep that information in a file separate from the employees’ personnel files. It is imperative to maintain accurate and complete documentation in case an unhappy employee decides to take legal action against your company.

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There is no room in the workplace for any kind of harassment. Creating clear policies is the first step to eliminating it. Enforcing those policies shows your employees you value professionalism.

Wouldn’t it be great to start a new hashtag? #NotHere


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