Drafting and Navigating Your Workplace Sexual Harassment Policy

Drafting and Navigating Your Workplace Sexual Harassment Policy

Drafting and Navigating Your Workplace Sexual Harassment Policy

It seems as though new cases of sexual harassment have been uncovered weekly – or daily – over the last few months. This trend testifies to a revolution in reporting workplace misconduct, which is itself part of a larger narrative of empowerment in American culture.We see the high-profile cases capturing headlines, but it is important to realize that sexual misconduct in the workplace occurs outside the limelight of the national media as well. Often, victims of sexual harassment in more private work communities are less compelled to come forward. Businesses need to be cognizant of this dynamic and work to craft a sexual harassment policy that empowers victims and promotes the safety and well-being of all workers.

Below, we discuss the fundamentals of an effective sexual harassment policy.

Introduce the Policy
Set the Goals. You should begin by stating the goals of the policy: a safe and inviting work environment, a strong company culture; you should make these goals reflect your company identity. If your workers understand the purpose behind the policy, they are more likely to respect the process.

Set the Tone. It should be clear that all reports of sexual harassment will be treated seriously and confidentially, involve prompt investigation, and that findings of misconduct will be met with zero tolerance.

Set the Scope. Sexual harassment isn’t limited to the office, nor is it only male-on-female or one co-worker against another; your company’s sexual harassment policy shouldn’t be so limited either. Make it clear that the policy extends to social events and electronic interactions, same-sex and female-on-male misconduct, and misconduct involving not just co-workers but clients, customers, contractors, and visitors as well.

Lean on the Law
Prohibitions against sexual harassment have a strong basis in federal and state law, including the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, and Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972. You should include mention of these and applicable state laws in your company policy.

Define Sexual Harassment
A clear picture of what constitutes sexual harassment will put everyone on notice and set expectations for workplace behavior. Define the interactions that are prohibited – not only the physical, but the verbal and non-verbal as well. You can, and should, provide examples: use of job-related threats, unwanted solicitations, sexual jokes, gender- or sexual orientation-based insults, sexually explicit electronic communications, suggestive gestures, sounds, and looks.

Set Complaint Procedures
Have a Dedicated Team and Channel. Channels for handling sexual harassment complaints should be self-contained and separate from the standard channels for other types of complaints. There is a particular need here for privacy and timely investigation that demands dedicated resources. The team handling complaints is typically part of the human resources department, but smaller companies without HR will need to designate individuals. It is important to have a gender-balanced team for sexual harassment reporting. Those individuals should undergo sexual harassment management training.

They should also, where possible, be isolated from professional influences of the regular workplace hierarchy, as sexual harassment is commonly initiated by those in positions of power.

Outline the Process. A typical complaint procedure follows these steps:

  • Record dates, times, and facts of the incident
  • Ascertain victim’s desired outcome
  • Discuss resolution process with victim
  • Educate victim on his or her ability to file a complaint outside of the company through the legal system
  • Allow alleged harasser an opportunity to respond to the complaint
  • Discuss resolution process with alleged harasser
  • If resolution process is informal, facilitate a discussion between management and the parties
  • If resolution process is formal, conduct an internal or external investigation which should include interviewing knowledgeable individuals, collection of relevant materials, and creation of a report detailing findings and recommendations
  • Decide an appropriate resolution
  • Follow up after resolution has been handed down
  • Maintain records during each step of the process

If an investigation reveals misconduct, the company should identify a remedy that is appropriate for both the victim and the harasser. In the victim’s case, an apology may suffice, or a change in work arrangement may be necessary if the victim and the harasser work closely with one another. It is important that the victim has options and a voice in the resolution process. Appropriate punishment for a harasser may be sexual harassment training, wage cut or demotion, suspension, or termination.

If, on the other hand, an investigation reveals no misconduct, appropriate steps should be taken to prevent future false reporting. This is a delicate situation, as legitimate victims already face strong deterrents to reporting without the fear of being punished for speaking up. However, it is important to acknowledge that even a false accusation of sexual harassment can severely damage an innocent person’s reputation.

Execution is Key
Once you’ve drafted a comprehensive policy, your team needs to execute it accordingly. Procedures should be followed without exception; those designated individuals should not pick and choose which procedures to follow, as inconsistent execution is the best way to undermine a well-written rule.

Set the tone from day one. It is best practice to require workers to review and sign the sexual harassment policy upon entering employment. This will provide notice and set expectations for day-to-day behavior as well as for what happens should an issue arise. Another great way to ensure that workers remain cognizant of sexual harassment in the workplace is to have periodic training on the subject.

Remember that it is the company’s responsibility to provide a safe work environment. Establishing effective sexual harassment policies goes a long way toward achieving that goal.

About Alex Gertsburg

At Gertsburg Law, our attorneys have a comprehensive understanding of the countless issues facing businesses on a daily basis. Most of our experienced attorneys in the Chagrin Falls and Cleveland offices are former business owners and in-house counsel, bringing a unique perspective and depth of knowledge to their skill set. We will work with you to understand your goals and to find the right solution for your organization.