Why employers should have a sexual harassment policy

Even if you've never personally witnessed sexual harassment in the workplace, the sad reality is that this type of inappropriate behavior still occurs alongside bribery and other forms of threats. Sexual harassment is far more common than you may know, affecting individuals of all ages, genders, races, and national origins. It’s often tied to a quid pro quo exchange for low- and high-wage earners — and everyone in between.

Because workplace sexual harassment continues to be so pervasive, employers should take the time to create and maintain a company sexual harassment policy. Not only will such a policy help protect employees from unwanted sexual advances and inappropriate conduct, but it can also help the company resolve potential issues before they escalate into costly litigation.

Workplace sexual harassment policies: The basics

Have you ever heard of Title VII of the Civil Rights Act? It's the federal law that expressly prohibits workplace sexual harassment as a form of unlawful discrimination — see also Title IX sex discrimination for educational institutions. Also, depending on the state, there may be several local laws dealing with sexual harassment that you may need to know about.

Despite these laws, however, sexual harassment still occurs in the workplace — and when it does, the employer may be legally liable. Given the potentially severe legal consequences — not to mention the emotional consequences for the victims of sexual harassment — it only makes sense that employers have a well-crafted sexual harassment policy in place.

But what should this sexual harassment policy look like? It may vary from company to company, but here are several tips:

• Explain the process for reporting sexual harassment, including how to make a complaint, as well as the name, location, and contact info of the person to whom employees can file their complaint.
• Provide employees with an easy-to-understand mechanism for reporting sexual harassment, including a sample complaint form.
• Encourage employees to report incidents of sexual harassment quickly, whether in writing or verbally.
• Explain that the employees must adhere to the company's internal procedures and policies.
• Inform employees that employers may take disciplinary action against them if they violate the policy.

Once a policy is in place, it's crucial that the company enforce it equally and consistently for all employees, thereby showing that no one is above the rules. Regardless of title or level, everyone must be held accountable if they violate the sexual harassment policy.

It's also vital that companies conduct a prompt investigation as soon as an employee makes a complaint of sexual harassment. At a minimum, this should include interviewing the complaining employee, the accused employee, and any potential witnesses.

Employers should clearly and accurately document everything done during the investigation. Once the investigation is done and reinterviews completed, the company should prepare a detailed report outlining its findings.

A prompt response and a thorough investigation will not only help root out sexual harassment but are often essential to a successful legal defense should the employer find themselves involved in litigation.

What does sexual harassment look like?

Sexual harassment can take many forms in the workplace. Sometimes, it’s difficult for employees to recognize such threats — similar to identifying fraud schemes. Indeed, the list of actions that may qualify as sexual harassment is virtually endless, but may include things like:

• Inappropriate or unwanted touching, including patting, pinching, or rubbing
• Making offensive comments about someone's gender identity or sexual orientation
• Making sexual comments about a person's appearance, body parts, or clothing
• Purposefully brushing up against another person or standing or sitting too closely
• Displaying inappropriate photos, pictures, or posters that are sexual
• Sending suggestive emails or texts or placing evocative notes where the victim can see them
• Sharing pornography, salacious GIFs, or other sexually inappropriate images or videos
• Staring in an offensive or sexually suggestive way
• Telling sexual anecdotes or vulgar jokes
• Exposing portions of one's body to another employee
• Making sexual gestures
• Repeating requests for a date with someone who has already said no or has not expressed or returned interest
• Using offensive or belittling phrases, including "sweetheart," "honey," or "dear"

What can employers do to help prevent sexual harassment?

There are many reasons why an employer would want to prevent sexual harassment from ever happening, including to protect their employees from needless suffering and turmoil. But another added benefit is that the employer won't have to worry about liability for sexual harassment if the harassment never occurs in the first place.

Fortunately for both employers and employees, there are several steps companies can take to stop harassment from ever happening, including the following:

• Proactively eliminate harassment by encouraging supervisors to take action if they observe inappropriate conduct, even if no employee has complained.
• Implement a zero-tolerance policy for inappropriate jokes and comments.
• Comply with any notice-posting requirements to inform employees of their rights; it's always a good idea to make the sexual harassment policy available to current employees and new hires.
• Require employees they sign and acknowledge that they received, read, and understood the policy — meaning they know from the start what the policy prohibits and that they may face severe consequences for violating it.
• Periodically remind all employees — especially supervisors — of the sexual harassment policy, which may include training on how to spot potential harassment and a refresher on prevention techniques and policy procedures.

Keep in mind these are merely a few things employers can do to help prevent sexual harassment before it starts.

Practical Law: Where to find your answers

If you remember nothing else, remember this: employers must have a clear and easy-to-understand sexual harassment policy for their employees. It helps protect everyone, and it's just good business.

Unfortunately, sexual harassment may still occur in the workplace, even when employers do everything right by drafting good policies and taking steps to prevent inappropriate conduct.

When that happens, you will need answers. So, sign up for your free trial of Practical Law today. Get the expert guidance for drafting a well-crafted sexual harassment policy you need at your fingertips.