Sexual Harassment and Workplace Policies: What Employers Should Do Immediately in the Wake of the #MeToo and #TimesUp Movement.
By: Autumn D. Moody | Attorney, Mediator, and Business Consultant
The recent news reports surrounding the slew of sexual harassment complaints, #MeToo and #TimesUp movement has captured headlines across the country. Business Consultant and Employment Attorney Autumn D. Moody explains what companies can do to proactively take steps towards a workplace free of sexual harassment.
Types of Sexual Harassment
Sexual harassment can happen in any company, large or small. Sexual harassment can occur to anyone, female or male, whether it be between the same sex or opposite sex. Sexual harassment is basically unwelcome conduct of a sexual nature and there are two different kinds: (1) Quid Pro Quo and (2) Hostile Working Environment.
Quid Pro Quo Harassment typically occurs where submission to or rejection of unwelcome sexual advances or requests for sexual favors by an individual is used as the basis for employment decisions affecting that person such as a promotion, pay increase, or job. For example: If you do something for me I will do something for you…If you sleep with me, I will hire you/promote you…I won’t fire you/demote you. Typically, this type of harassment occurs between a supervisor and subordinate employee or someone who has control over the terms and conditions of their employment. In contrast a Hostile Work Environment claim may arise where unwelcome verbal, physical or visual conduct of a sexual nature is sufficiently pervasive so as to alter the conditions of employment and unreasonably interfere with an employee’s work environment. A hostile work environment can be created by supervisors or a coworker. Some examples are offensive jokes, images, asking someone out repeatedly, exposing oneself, and sexual assault.
Things Employers can do to Eliminate Sexual Harassment in the Workplace.
Employers need to make sure that they have an effective anti-harassment policy in place that is written and communicated to employees. If you work in Human Resources for a company or own a business it is good to check your anti-harassment policies and see the last time they were updated. Employees need to have a clear path to communicate their concerns to the employer, which should be outlined in the policy. This path should not include telling the harasser to “stop” as this often makes the employee feel unsupported by the company in what may be an already uncomfortable situation. The employee should be directed to report the concern to a particular supervisor (so long as that person is not the harasser) and/or go to human resources; someone who is trained to intake those complaints.
In addition, companies need to make sure that managers are trained on the policies, the prohibited conduct and what would happen to someone if they violate the policy. Managers also need to know the proper steps to take when someone complains to them as a manager or supervisor. There are many times that supervisors and managers do not recognize or realize that an employee is making a formal complaint simply because the complaint is not written down and is made verbally, rather than to human resources. There is no distinction between a formal and informal complaint. Even if an employee says they “do not want to make a big deal” about it, any complaint should be taken seriously because as soon as a manager has knowledge, that is considered imputed to the company and they have a duty to act once they have that information. The supervisor or manager does not have the choice to wait and see if the situation resolves or see if it gets worse.
Every anti-harassment policy should contain an anti-retaliation clause so employees will be encouraged to report all instances of potential misconduct. It is important not to jump to any conclusions or dismiss any complaints, but rather take every complaint seriously until an investigation can be completed.
What employers Should Do Right Now
California employers need to take sexual harassment complaints very seriously and involve legal counsel early. If you receive a complaint make sure to contact your employment counsel and consider using an outside investigator to remain neutral and eliminate any perception of possible bias during the fact-finding process. Best practices include engaging with your employment counsel to take the following action immediately:
- Evaluate existing company handbook policies related to sexual harassment, retaliation and discrimination to make sure they are legally sound;
- Evaluate existing company procedures for handling and investigating sexual harassment complaints;
- Conduct mandatory 2-hour sexual harassment training for all supervisors/managers in accordance with California Law; and
- Conduct a refresher 1-hour sexual harassment training for all employees.
For more information, please visit www.themoodyfirm.com or call (619) 210-0880.
The Moody Firm is a Legal and Business Consulting Firm based out of San Diego, CA. The Moody Firm conducts independent neutral fact-finding investigations into complaints of sexual harassment, discrimination and other violations of labor laws for parties (companies, attorneys, individuals and insurance carriers) with whom it has no client relationship. Autumn D. Moody is the principal attorney at The Moody Firm. Her legal expertise primarily focuses in employment, business, municipal tort and civil rights litigation. She is also a Business Consultant and Mediator for litigated cases. She has an M.S.B.A in Entrepreneurship, B.A. in Human Resources Management, and a B.A. in Communication Studies.