Sexual harassment lawsuits continue to make up a large percentage of cases filed by the Equal Employment Opportunity Commission (EEOC) and many of the recent cases filed against employers. In addition, digital sexual harassment has become a more common form of sexual harassment through texting, email, and other electronic forms of communication.
Given these trends and that most sexual harassment lawsuits can extremely costly for employers, it's important to thoroughly understand the issue of sexual harassment and follow specific guidelines to stay compliant.
Sexual Harassment: An Overview
Sexual harassment occurs when an employee is unfairly treated because of his or her gender. Women are more likely to experience sexual harassment than men. Specifically, there are two types of sexual harassment that are protected under law:
- Quid pro quo harassment occurs when an employee complies with an unwelcome sexual advance (usually by a person of authority such as a supervisor) based on a term or condition of employment.
- Hostile work environment harassment occurs when employees experience sexually-charged behavior in the workplace that makes them feel uncomfortable, like unwelcome sexual advances and sexually derogatory comments.
When Liability Falls on an Employer
Liability is dependent on two scenarios, according to the EEOC.
When a person of authority in the organization (usually a supervisor) sexually harasses another employee which leads to a tangible employment action (hiring, promotion, compensation decision, change in work assignments, etc.), employers are always liable.
When harassment does not lead to a specific employment action, employers are only liable when they know or should have known and failed to take appropriate corrective action to prevent sexual harassment and intervene.
How to Protect Your Organization: A 5 Step Checklist
To protect your organization in terms of liability, you should take sexual harassment seriously and follow these steps, several of which are based on guidance from the EEOC.
- Have a sexual harassment policy in place that defines sexual harassment and provides examples of specific behaviors that constitute harassment. It should state that your organization does not tolerate harassment based on sex (and other protected characteristics). Include the policy in your handbook and communicate/review it with your staff. Discuss the policy with new hires.
- Provide sexual harassment training. Provide periodic sexual harassment training to your workforce and supervisors to help them recognize and prevent sexual harassment, and to help managers understand their responsibilities when dealing with issues of harassment. Make sexual harassment training a mandatory training part of a new hire's orientation.
- Have a complaint and/or grievance procedure. Establish a procedure for reporting a complaint of sexual harassment and ideally, alternative methods of filing sexual harassment complaints. Also, more than one individual should be able to take complaints, and they should be accessible. Keep all complaints and grievances confidential.
- Investigate all complaints. An organization's liability for sexual harassment can be reduced or eliminated depending on how quickly and effectively it responds to a complaint of harassment. Thorough investigations should be conducted on all complaints immediately following receipt of the complaint. Accurate records of the investigation need to be maintained.
- Correct the issue and protect the victim from retaliation. Take steps to correct the issue of harassment. If an employee is found guilty of sexual harassment after your investigation, discipline the employee according to the severity of the offense and document the actions taken in writing. And, make sure that no employee who brings a sexual harassment claim faces retaliation.
All employers are at risk of sexual harassment and many organizations don’t pay enough attention to the issue. Unfortunately, just one lawsuit can result in hundreds of thousands of dollars in settlement costs. Be sure you take steps to reduce your liability and protect your organization from the costly consequences of ignoring this important workplace issue.
Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.