The age of #MeToo has forced companies to look at their sexual harassment policies, or lack thereof; some for the very first time.
Sexual harassment is a big deal, and it’s pervasive in the workplace not just here in the US, but globally. Studies show that not only is it widespread, but as many as 80% of women experience it during their lifetimes.
Sexual harassment is damaging to people’s mental and physical health, and it has no place in the workplace or society. So how do you handle sexual harassment cases reasonably?
By following these steps.
1. Create a Zero-Tolerance Sexual Harassment/Gender Harassment Policy
Make it clear from the beginning where your company stands on sexual harassment, unwanted sexual attention, sexual coercion, and gender harassment.
You need this in writing in your employee handbook and other relevant documents.
First, it sets the expectation that everyone must behave in a kind, respectful way.
Second, it gives both your HR and management teams a license to investigate sexual harassment cases and take disciplinary actions where required.
Finally, it protects your business in the event that you need to fire someone who violates the policy.
A clear policy not only handles specific harassing behaviors, but it also needs to describe the perception of the actions and use emotional language. Depriving the policy of any emotion allows employees to insert it for themselves, and it removes control from your hands.
For example, use the word “victim” instead of “target” to describe the person experiencing harassment — these change how people interpret and experience the policy on both sides.
Be sure also to include a bystander intervention – “if you see something, say something.” The bystander intervention removes the onus for reporting from lying exclusively on the victim, which makes them even more vulnerable. When you require bystander interventions, you also create a healthier workplace by preventing other employees from burying their heads in the sand.
2. Provide Different Ways to Complain
If you hear whispers of sexual harassment but don’t seem to get complaints, then it is perhaps because there’s no easy way to make one.
Make sure all staff members know they have multiple ways to complain: to a manager, to the president, to the CEO. However, because these people can also be the predator, it’s also vital for victims to have an avenue that doesn’t represent power over them, like complaining directly to HR.
3. Assign Someone to the Complaint
Don’t just take the complaint and put it in a file.
Assign a specific staff member to take ownership of the harassment complaint.
They should have no direct power over the reporting victim. Still, they should also be knowledgeable about the people in the organization, the work culture, and the history of sexual harassment in the workplace.
4. Assess the Likelihood of Retaliation
Before sharing or investigating the complaint, it’s crucial to assess the likelihood of the victim experiencing retaliation.
Retaliation isn’t just unethical; it’s a violation of the Equal Employment Opportunity Commission (EEOC) rules, which makes it squarely an HR problem. Retaliation can occur whether your investigation of a complaint finds a case of harassment or not. EEOC law almost always rules against retaliation.
Take the threats of retaliation seriously. Women, in particular, are filing more harassment claims after the #MeToo scandal.
The EEOC says they had a 13.6% jump in 2018, but there are also more cases of retaliation. If you have instances of provable retaliation on your hands, then you’ll almost always need an employment lawyer.
Make sure the employee knows that they should report any purported retaliation, ongoing harassment, or full-blow retaliation they experience.
5. Interview the Victim, Witnesses, and Accused Employee
The assigned employee should then interview both the reporting victim and the witnesses.
You need to know the whole story in their words. If the employee agrees, record the conversation. This allows you to listen thoroughly and still keep accurate, relevant notes.
Then, let them know the complaint will be filed.
Remember: all documentation should be in a separate file to their personnel files.
The victim may name witnesses, but they may also be afraid to do so. This is why it’s so important for the assigned employee to know the workplace well. It’s easier to pick out those who are most likely to have seen something.
A firm bystander policy will make it easier to interview witnesses who are knowledgeable about the claim. It not only compels them to share what they know, but it also increases the likelihood that they’ll share on their own.
Provide the accused employee the chance to tell their story and keep their documentation separate from their personnel files as well.
6. Consult With HR Colleagues
After interviewing witnesses and performing an investigation, the assigned employee should talk with other HR colleagues. You can never have all the information in a case like this, so you need to make the best decision with what you have.
Take your other colleague’s input seriously, and also consider what the complaining victim would like to see happen, moving forward.
Remember that harassment isn’t a spectrum: it’s only a line crossed. There is no “it’s not as bad as…” in these cases.
7. Consult With an Attorney
It’s a good idea to consult with an employment attorney before making your next steps.
A ruling in either direction that requires more minor adjustments of working situations can result in a lawsuit from either party.
Do You Have a Policy to Deal With Sexual Harassment Cases?
Sexual harassment is pervasive in society, and the power dynamics in the workplace mean that it’s very likely to happen at your company. It could even be happening right now.
You need a harassment policy to deal with sexual harassment cases. The system ensures every case gets the same fair treatment, and it sets expectations for all employees regarding what to do about sexual harassment.
Do you have more employment law questions? Visit our legal archive for more helpful articles.