Five Steps to Prevent Workplace Harassment
By Stephanie E. Lewis, Esq. Jackson Lewis, P.C.
It’s 9:00 Monday morning, and you get a call from your Vice President of Human Resources saying that she received a complaint over the weekend that your Senior Vice President of Sales, Tom, sexually harassed a new sales representative, Julie, at an out-of-town conference they both attended last week. Tom is one of the top producers in the company. You have heard he can be a little too flirtatious with the women on the team, but you have overlooked it because his style gets results, and nobody has complained before. Julie is 22-years old, this is her first job, and she says that Tom tried to kiss her in the hall outside her hotel room and tried to force his way in.
What do you do?
Step One – Promptly Investigate
Consider who will be an effective and impartial investigator. Many times, this will be your Company HR representative. However, there are times you should engage a third-party to investigate. In either event, you should ensure that the matter is handled professionally and thoroughly. Every investigation should include, at a minimum, interviewing the individual who complained, the person accused, and any witnesses.
Step Two – “He Said, She Said”
Employers struggle with “he said, she said.” Many times, there is evidence to refute or confirm the allegations. For example, there may be text messages, audio or video recordings, or patterns of similar complaints. In the scenario above, the hotel may have video footage. Because Tom is known to be “flirtatious,” it will be important to interview other employees to determine if they have seen/experienced anything like this.
Step Three – Correct Substantiated Wrongdoing
If harassment is substantiated, employers should quickly correct the behavior and ensure it will not happen again. Depending on the nature of the offense and past discipline, this could be a written warning, sexual harassment training, demotion, keeping the employees apart, or termination of employment. Do not require the complaining employee to change work schedules or locations, as this may be viewed as retaliation. If the complaint cannot be verified, it is a good idea to remind employees of your Company’s anti-harassment policies.
Step Four – Update Policies
Your policies should define harassment, provide multiple channels to report harassment (including anonymous reporting), and emphasize that there will be no retaliation for reporting harassment or participating in an investigation. Your policies should also address whether supervisors can be in romantic relationships with subordinates and what is expected if a relationship develops (e.g., notification to HR, change in reporting relationship, etc.).
Step Five – Educate Your Employees
It is important to educate your employees, and especially senior leaders, about the “new norms” of expected behaviors and how to avoid workplace harassment claims. For example, do your leaders think that is ok if a colleague is flirtatious, as long as nobody complains? Do your employees know if your company’s harassment policies apply to conferences and other off-site activities? If your leaders saw or heard about potential harassment, would they know how to respond? If you answered “no” to any of these questions, it is time to re-boot your anti-harassment training program. In this “#MeToo” environment, business owners must be proactive to avoid harassment claims. These claims can cause substantial reputational harm and are expensive to defend. The five simple steps above will position your company to ensure a respectful and harassment-free work environment. Stephanie E. Lewis is the Managing Principal of Jackson Lewis’s Greenville office and regularly counsels employers on preventing and defending harassment claims.
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