How an Employer Can Avoid Sexual Harassment Liability
During the past decade, I've defended many employers in sexual harassment claims and lawsuits. Whether a Fortune 500 corporation or a small business, the same mistakes/issues seem to occur prior to the claims (and usually before I'm called.) Based on my experience, I believe any business will be less vulnerable to sexual harassment claims if these three steps are followed:
A Written Sexual Harassment Policy is Crucial
If a claim is made, the first thing the EEOC or other finder of fact will see is the employee's written complaint. The first thing the employer should be able to produce in response is an easy to understand written policy clearly showing that the employer does not accept or allow unlawful sexual harassment. The policy needs to be current (laws, decisions, and even terminologies change in this area) and it must be tailored to your organization. More than once I've seen an employer with a policy they've grabbed from the internet that doesn't make sense for their company -- for example, "report your complaint to your HR manager" when there is no such person in the company.
The Written Policy Must be Disseminated and Followed
As the employer accused of allowing sexual harassment in your workplace, you will likely have to prove that the claimant and anyone else involved had actual notice of the written policy. Discuss with your HR department or attorney how to best accomplish this in your work environment. How will you distribute updates to your policy? What is the best way for your company to train all of your employees on the policy, and how will you prove the employees involved in this complaint completed the training? If you outsource to a hotline or other service for the taking of complaints, how will you check periodically to make sure the system is functioning? How often should you check?
Take Immediate and Appropriate Action When a Complaint is Made
A complaint must be taken seriously; each complaint will require an investigation. Have a plan in place as to who will investigate and how. If the allegations are quite serious, consider bringing in an outside investigator or attorney to investigate. Often, employees need to be separated in the workplace during the investigation -- which can be terribly problematic for a small business and may leave the employer open to accusations of unfairly treating the complaining employee, the employee who was complained against, and even other employees who may be impacted. Very difficult decisions may be required quickly. If your company is contacted by the EEOC, another governmental agency, an attorney representing an employee, or the media regarding a sexual harassment complaint, unless you have a very seasoned HR representative or other professional on staff, I urge you to contact an attorney with experience in this area for advice.