Over the past three decades, there has been an upsurge in the number of cases related to sexual harassment lawsuits. This started in 1991 with the televised testimony of Anita Hill at the Clarence Thomas Senate Confirmation hearing in order to become a Supreme Court Justice. Following that came the Paula Jones’ lawsuit against then sitting-President Bill Clinton as well as several other high profile and multi-million dollar verdicts that have since caused a litigation tsunami.
In 1998, this became the employer’s problem if a sexual harassment situation arose in the workplace; this was due to the US Supreme Court handing down two important decisions. However, the courts did give employers leeway with what is known as an “affirmative defense”. This defense was provided for if the employer had in place a policy that clearly outlined that sexual harassment would not be tolerated in the workplace. This article aims to briefly describe three steps in which an employer can keep itself out of court in relation to sexual harassment.
STEP 1: A WRITTEN SEXUAL HARASSMENT POLICY DOCUMENT
Every employer should have a written policy document on sexual harassment. This document should very obviously have been drafted by a capable law firm. At the very least, the policy document should state:
· What exactly constitutes sexual harassment
· Details of the mechanisms available for reporting sexual harassment
· A statement mentioning that all such complaints would be punctually and systematically investigated
· A statement mentioning that if and when a violation has been found to have taken place, remedial action will be promptly taken.
STEP 2: COMMUNICATION OF THE POLICY
A sexual harassment policy document is useless if it just sits in an employee handbook or in a file in the Human Resources department. This policy needs to be communicated with and understood by every employee. It should be given to employees when they are hired, it should be thoroughly explained to employees and the employees should sign a receipt that they acknowledge receiving the policy document, that the policy has been thoroughly explained to them and that the employee agrees to abide by the policy in its entirety. The policy document also need to be made visible; for example, it can be pasted on the wall or notice boards and discussed during meetings. If and when appropriate, the policy document should be translated into other languages that are used by the employees. However, all of this is useless if the policy is not enforced and taken seriously when complaints are made; this will help ensure that employees are comfortable using the mechanisms in place to curb sexual harassment.
STEP 3: PROVISION OF TRAINING FOR EMPLOYEES
Under Law AB 1825 in California, it is now a requirement that all employers that have 50 or more staff should at least make provision for supervisors to have two hours of training related sexual harassment prevention. Although this is not required of employers with fewer than 50 staff, it is still worth undertaking as it could help in being an effective preventative method as well as possibly improving staff morale and equipping supervisors with the skills to prevent occurrences from developing into problem situations. Often when an employer is sued, one of the first questions asked is whether they have trained their supervisors in prevention of sexual harassment. In this scenario, the employer can provide an attendance register of the training session.
There are a variety of options available to employers so that they are in compliance with existing and changes to the law in order to avoid an expensive lawsuit. Often a specialist will go over one’s existing policy to ensure that it is adequate, or a new policy will be drafted for an employer. Specialists can also meet supervisors in the workplace to discuss hypothetical scenarios in order for them to understand what is unacceptable behaviour in the workplace. Supervisors should sign a receipt stating that they understand the policy document, are bound by it and violation could lead to their dismissal. There are a variety of resources on the internet that could also help, such as www.futureswithoutviolence.org/workplacesafety and https://www.thebalance.com/sexual-harassment-1918253 Additionally, visit smallbusinessattorneynyc.com for any other business legal advice you might need.