Harassment 2018: Do You Have a Plan?
It’s been 20 years since the 1998 Supreme Court rulings that held employers are liable, not only for gender discrimination, but also for sexual harassment. Lately though, things have shifted in the United States. Employees are taking action about unacceptable and unlawful harassment. Law firms report huge increases in the number of sexual harassment inquiries. In fact, our firm has seen a sharp increase in the number of harassment complaints we have been hired to investigate.
This can be a difficult issue for employers because much lies in the perception of the person being harassed. There are many dangers to employers who do not take this issue seriously. Money, reputation and an organization’s culture are all at risk when an employer does not address this issue as strongly as it would theft, unethical behavior or other egregious threats. Most importantly, being a great place to work means there is an environment that will not ignore these behaviors.
Even for organizations who have plans in place, astute employers are re-examining their polices and updating their employer and supervisor training. Here are some key points for preventing and preparing for complaints:
- Educate on your expectations. How do you expect employees to conduct themselves in your workplace? Business owners and those in charge of human resources must be well educated about what harassment is. Create a policy and provide employee education that includes training for what is unacceptable behavior and who to report it to. Do your managers, supervisors and employees automatically know what to do when someone tells them about a harassment situation? Leadership accountability is essential at every level. This topic must be covered at the time of hire, and as part of a regular annual training program.
- Agree on and designate a process (before a complaint is made). When a complaint is made it must be taken seriously and responded to right away. Having a process in place means you can resolve these things quickly. Dragging out this process will be more damaging for all involved. Make sure there are always a minimum of two people to whom harassment can be reported in an organization, ideally, one male and one female. Ensure that those who will investigate are trained on that process, confidentiality, and how to follow up with the complainant. Prior to the situation, agree on and identify who (usually a third party, an HR professional or attorney) will investigate complaints made about executives.
- Zero tolerance means there are consequences. If after investigation it is determined that harassment has occurred or likely occurred, what steps will you take? This is not a one size fits all; zero tolerance doesn’t mean fire every person every time. Disciplinary action may include a written and signed document that explains what is believed to have occurred, what steps were taken and what will happen if a similar incident should happen again. Additionally, what steps can the organization take to prevent similar incidents in the future? In some cases, termination is appropriate. Most employers in Michigan are at will, not a court of law where guilt must be proven beyond a reasonable doubt. When terminating employment, we suggest a review with your employment attorney.
- Prevent retaliation. Make sure everyone understands what “no retaliation” means. These are by far the biggest number of complaints that the U.S. Equal Employment Opportunity Commission receives and investigates (45 percent in 2016). It’s not the harassment, but the negative treatment or consequences that employees perceive AFTER they reported the harassment. This includes: isolating an employee, forcing them to move to a different job/department, or denying them promotions or pay raises. Retaliation is illegal and prohibited.
- Management expectations. There are no appropriate intimate relationships with a subordinate or lower-level employee. The biggest problem with these relationships is the disparity in power. Employers must strive to discourage relationships where an employee may feel pressured to begin or continue a romance with a senior ranking company employee. These relationships are often damaging professionally for both people involved.
2018 will continue to be a year where organizations and our country work on reducing the incidences of harassment. At the end of the day, it’s all about providing a safe and respectful workplace. Reexamining what kind of environment you want to provide and knowing how your organization will respond to behaviors outside of that vision will help create the type of workplace where employees can do their jobs to the best of their ability, without fear and without distraction.
Tips for employees experiencing harassment at work:
- If you have been harassed, it is important that you report the incident(s) right away. When appropriate, talk to that person, but if they do not change their behavior or it is egregious in nature, you need to report it immediately.
- Write down details of the incident. Capture important facts, where, what was said, and who else may have observed. Of course, if you have been assaulted, this should be reported to the police.
- Review your organization’s policy. Usually there will be information about who and how to report an incident. There may be a form you can fill out to include important details.
- Think about what you would like to see happen, beyond having the behavior stop. Does the employee need training? Do you want an apology? Should the employee be fired? Do you feel safe working around the person who harassed you?
- Take notes on your discussion with HR or the person you report it to. Clarify what retaliation is and what you should do if you experience it. Generally a confidential investigation will commence immediately, and the person in charge should let you know when they will get back to you. You many not be told about specific action taken against the alleged harasser, but the behaviors should cease immediately and forever.
- If similar behavior happens again, report it to your employer right away. Also report any concerns of retaliation so these can also be addressed.
- If you don’t feel your initial complaint is being heard, take it to someone else within the organization such as your boss’s boss, an owner or officer.
- If you aren’t getting any response from your employer or the harassment continues, you may want to contact the U.S. Equal Employment Opportunity Commission (eeoc.gov) or Michigan Department of Civil Rights (Michigan.gov) to file a complaint or talk to an attorney.
Kate Greene, SHRM-SCP, GPHR, SPHR is an HR consultant at Human Resource Partners in Traverse City. She can be reached at firstname.lastname@example.org or (231) 409-9175.