Drafting and Navigating Your Workplace Sexual Harassment Policy

Learn what comprises an effective sexual harassment policy and click the link at the bottom of this article for a free sample policy to use at your workplace.

It appears new cases of sexual harassment have been uncovered weekly—or daily—during the past few months. This trend testifies to a revolution in reporting workplace misconduct, which is itself part of a larger narrative of empowerment in American culture.

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    We see the high-profile cases capturing headlines, but it is important to realize that sexual misconduct in the workplace occurs outside the limelight of the national media as well. Often, victims of sexual harassment in more private work communities are less compelled to come forward. Businesses need to be cognizant of this dynamic and work to craft a sexual harassment policy that empowers victims and promotes the safety and well-being of all workers.

    Below, we discuss the fundamentals of an effective sexual harassment policy.

    Introduce the Policy

    Set the Goals. You should begin by stating the goals of the policy: a safe and inviting work environment, a strong company culture; you should make these goals reflect your company identity. If your workers understand the purpose behind the policy, they are more likely to respect the process.

    Set the Tone. It should be clear that all reports of sexual harassment will be treated seriously and confidentially, involve prompt investigation and that findings of misconduct will be met with zero tolerance.

    Set the Scope. Sexual harassment isn’t limited to the office, nor is it only male-on-female or one co-worker against another; your company’s sexual harassment policy shouldn’t be so limited either. Make it clear that the policy extends to social events and electronic interactions, same-sex and female-on-male misconduct, and misconduct involving not just co-workers but clients, customers, contractors, and visitors as well.

    Lean on the Law

    Prohibitions against sexual harassment have a strong basis in federal and state law, including the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, and Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972. You should include mention of these and applicable state laws in your company policy.

    Define Sexual Harassment

    A clear picture of what constitutes sexual harassment will put everyone on notice and set expectations for workplace behavior. Define the interactions that are prohibited—not only the physical, but the verbal and non-verbal as well.

    You can, and should, provide examples: use of job-related threats, unwanted solicitations, sexual jokes, gender- or sexual orientation-based insults, sexually explicit electronic communications, suggestive gestures, sounds, and looks.

    Set Complaint Procedures

    Have a Dedicated Team and Channel. Channels for handling sexual harassment complaints should be self-contained and separate from the standard channels for other types of complaints. There is a need here for privacy and timely investigation that demands dedicated resources. The team handling complaints is typically part of the human resources department, but smaller companies without HR will need to designate individuals. It is important to have a gender-balanced team for sexual harassment reporting. Those individuals should undergo sexual harassment management training.

    They should also, where possible, be isolated from professional influences of the regular workplace hierarchy, as sexual harassment is commonly initiated by those in positions of power.

    Outline the Process

    A typical complaint procedure follows these steps:

    • Record dates, times, and facts of the incident
    • Ascertain victim’s desired outcome
    • Discuss resolution process with victim
    • Educate victim on his or her ability to file a complaint outside of the company through the legal system
    • Allow alleged harasser an opportunity to respond to the complaint
    • Discuss resolution process with alleged harasser
    • If resolution process is informal, facilitate a discussion between management and the parties
    • If resolution process is formal, conduct an internal or external investigation which should include interviewing knowledgeable individuals, collection of relevant materials, and creation of a report detailing findings and recommendations
    • Decide an appropriate resolution
    • Follow up after resolution has been handed down
    • Maintain records during each step of the process

    If an investigation reveals misconduct, the company should identify a remedy that is appropriate for both the victim and the harasser. In the victim’s case, an apology may suffice, or a change in work arrangement may be necessary if the victim and the harasser work closely with one another. It is important that the victim has options and a voice in the resolution process. Appropriate punishment for a harasser may be sexual harassment training, wage cut or demotion, suspension, or termination.

    If, on the other hand, an investigation reveals no misconduct, appropriate steps should be taken to prevent future false reporting. This is a delicate situation, as legitimate victims already face strong deterrents to reporting without the fear of being punished for speaking up. However, it is important to acknowledge that even a false accusation of sexual harassment can severely damage an innocent person’s reputation. 

    Execution is Key

    Once you’ve drafted a comprehensive policy, your team needs to execute it accordingly. Procedures should be followed without exception; those designated individuals should not pick and choose which procedures to follow, as inconsistent execution is the best way to undermine a well-written rule.

    Set the tone from day one. It is best practice to require workers to review and sign the sexual harassment policy upon entering employment. This will provide notice and set expectations for day-to-day behavior as well as for what happens should an issue arise. Another great way to ensure that workers remain cognizant of sexual harassment in the workplace is to have periodic training on the subject.

    Remember that it is the company’s responsibility to provide a safe work environment. Establishing effective sexual harassment policies goes a long way toward achieving that goal.

    Mark Turner is senior counsel at The Gertsburg Law Firm. The Gertsburg Law Firm is providing a sample zero-tolerance sexual harassment policy at to use for your business, as an early holiday gift. Please feel free to modify and adapt it to protect your business and your employees. From all of us at The Gertsburg Law Firm, we wish you a safe and pleasant holiday season.

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    Next up: Employee Motivation: 5 Things to Know
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  • Employee Motivation: 5 Things to Know

    It goes without saying a motivated workforce is a more creative and productive one, and that can go a long way to setting the tone for your company’s culture and engagement efforts. Here are five ways to energize your workforce, as provided via small business owners.

    It goes without saying a motivated workforce is a more creative and productive one, and that can go a long way to setting the tone for your company’s culture and engagement efforts. Here are five ways to energize your workforce, as provided via small business owners.

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    Walk the walk: Genuine leadership is key to creating a productive work environment.  If you demonstrate the same drive, passion, and commitment to the goals and vision of the company that you expect from your employees on a daily basis, you will inspire the same from your team. 

    Encourage dialogue: Make yourself available to your staff and keep lines of communication open.  Employees want to be able to speak their minds. By presenting opportunities to share ideas and voice concerns, you help establish trust and respect. On the flip side, be sure to communicate with your team as openly and honestly as possible. 

    Recognize achievements: Consistent recognition of a job well done, whether as a casual mention or as part of a formal employee recognition program, is a great no-cost way to acknowledge an employee's efforts. According to the 2015 Employee Recognition Report by the Society for Human Resource Management, values-based employee recognition programs are helping employers create a stronger culture and more human workplace.

    Offer self-improvement opportunities : Expanding and improving an employees’ skills and knowledge through professional development can benefit your company greatly while enhancing job satisfaction.  Professional development can encompass various learning opportunities, including formal training, certifications and topical seminars and conferences. 

    Incentivize your team: Whether through cash or non-cash rewards, incentivizing your team can boost employee morale and the overall corporate culture.  If pay increases or bonuses aren’t in the budget, consider offering paid time off, flexible work hours, remote work opportunities, employee celebrations, and goal-oriented contests with fun prizes.  

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    Next up: Employment Lawsuits: 10 Ways to Safeguard Your Business
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  • Employment Lawsuits: 10 Ways to Safeguard Your Business

    Learn the 10 things you have to know about mitigating exposure to employment-related lawsuits.

    Learn the 10 things you have to know about mitigating exposure to employment-related lawsuits.

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    Employment-related lawsuits are difficult to deal with: Emotions run high with personal issues often brought into play. Even when claims are meritless, defense costs can be substantial. The impact on morale and reputation can also be significant. The following 10 steps help reduce these issues in your business and strengthen your defense if an action is brought.

    1. Invest in an employee handbook

    This includes employment-at-will, harassment and discrimination provisions. Every employer should invest in an employee handbook. While this might seem like an unnecessary expense, having policies in place that address termination of employment, discrimination and harassment can reduce potential exposure in employment-related matters. At a minimum, a handbook should include an employment-at-will statement and a zero-tolerance policy toward discrimination and harassment. While sample policies are available, employers should ensure all policies are compliant with applicable state and federal laws. Ideally, an employment attorney should draft and/or review the handbook.

    Example: The COO maintained only one copy of an old, out-of-date handbook that was no longer compliant with state or federal laws in her office. The employees knew it was in the COO’s office and were not comfortable accessing it. When an employee filed a lawsuit, the handbook’s provisions were not enforced because they were (1) in conflict with the law and (2) because it had not been disseminated to employees.

    2. Ensure consistency

    Maintain consistency with a uniform review of all adverse employment decisions. A neutral party within your organization should review all such decisions to ensure the emotional component is minimized, and consequences of poor performance or misbehavior are being consistently evaluated.

    Example: Two supervisors had the ability to hire and fire employees on their respective teams. One strictly enforced attendance rules and terminated two employees who were late to work on three occasions. The other supervisor was more lax, allowing her team to arrive to work late or leave early. The terminated employees, who were both older than 40, filed suit alleging age discrimination, pointing out many employees younger than 40 had also been tardy on several occasions, but weren’t terminated.

    3. Train employees on employment-related issues

    All employees should receive basic training on employment-related issues. Training options are available online and in-person, or you can opt for an attorney to perform training at your organization.

    Train supervisors to:

    • Take every complaint seriously.
    • Immediately refer every complaint to HR or the designated employee and investigate in a timely, thorough manner.
    • Be fair and consistent.
    • Document performance issues and be honest on performance evaluations.
    • Be vigilant to stop conduct that could draw allegations of discrimination or harassment.

    Train non-supervisory employees to understand:

    • There is a process in place to file a harassment or discrimination complaint.
    • These are the types of behavior that are unacceptable in the workplace.
    • There is an employer’s handbook and/or policies and procedures in place.

    Example: Every day, after business close, employees would stay to complete standard end-of-business day duties. This hour was typically filled with sexual banter among the employees. The manager was present, but never took steps to stop these conversations. A new employee was hired and terminated after only a few months when it became clear that she was not meeting required service standards. She filed a discrimination charge, claiming sexual harassment because of what took place at the end of the workday.

    4. Document everything

    Employment claims often come down to one’s word against another’s. When an employer maintains detailed documentation created close in time to incidents in question, it’s a much stronger defense in any subsequent claims. Documentation should be clear, concise, free from emotion or unnecessary commentary, and include performance issues and the resulting consequences. Ideally, the employee should sign the documentation to acknowledge issues were brought to his or her attention. Performance evaluations of all employees should be done honestly. While it might be easier to simply give average or above average evaluations, it’s then difficult to defend any action by an employee where performance is relevant.

    Example: A woman complained to the president that she was being sexually harassed by her supervisor. The president met with the supervisor who promised to stop. The president did not document the conversation. The behavior continued. Months later, the woman was terminated for performance issues. She alleged she was fired in retaliation for complaining about sexual harassment. She kept detailed notes and established she complained to the president.

    She alleged he did nothing as a result and conspired with her supervisor to get rid of her. Because the president had no documentation of his meetings with the woman or her supervisor, her version of events was more believable.

    5. Watch workplace jokes and banter

    Most adults spend a huge chunk of their waking hours on the job and want to be able to enjoy relationships with their co-workers. While a collegial atmosphere is to be encouraged, it can quickly cross the line into actionable behavior. Consider the following comments: “Pregnant again? How many kids do you have?!” “You’re 50? Over the hill!” “As an African-American, what do you think of Obama?” “How was your vacation? Wish I could have seen you in a bikini!” “We need to figure out how to attract Gen-X employees.”

    All were intended as harmless banter; however, they were used as evidence against an employer in a lawsuit brought by a former employee. Be vigilant in ensuring that employee interactions are professional and appropriate.

    Example: A supervisor planned a 50th birthday party for an employee, including an “over the hill” banner, a black cake decorated with a tombstone and numerous age-related gag gifts. Shortly after the party, the employee was fired. He sued, alleging age discrimination, using the events at his birthday party as evidence of his supervisor’s discriminatory intent.

    6. Recognize pitfalls in pre- and post-employment time frames

    The interview process can be challenging as an employer attempts to gain information about prospective employees to determine whether they are suitable for a job. However, it is prohibited to ask about certain topics, such as disability, age, children, marital status, etc., and illegal to make hiring decisions based on such information. Interviewers should focus on asking only work-appropriate questions. Once an employment relationship has ended, care must still be taken. Final paychecks and payment for accrued vacation time must be made in a timely manner based on state law. Calls for references should be handled by one person and dealt with in a consistent manner. No specifics regarding a termination should be discussed with other employees or customers.

    Example: After an employee was terminated for dishonest conduct, the employer received a reference call on the employee. The employee provided a detailed and extremely negative reference that resulted in a defamation lawsuit.

    7. Regulate Internet and email use

    In most workplaces, employees have email and Internet access. Be vigilant that these tools are used in an appropriate manner. Have a policy prohibiting the access of pornographic or inappropriate websites and consider software that blocks inappropriate websites. Employees should be warned emails are never truly deleted and all email communication should be conducted in a professional manner.

    Example: The CFO was engaged in a consensual affair with an employee, communicating multiple times a day via corporate email. When the employee broke off the affair, the CFO continued to email her constantly, begging her to come back. Months later, the employee applied for a promotion and did not get it. She quit and filed a lawsuit alleging sexual harassment and retaliation. Their thousands of emails figured prominently in the case.

    8. Be aware of workplace violence issues

    An employer must be vigilant and safety conscious, understanding they have an obligation to provide a safe workplace and to take reasonable steps to ensure employee safety while on the job, especially in the event of a termination or other event that might cause anger on the part of an employee or even a customer. It might involve hiring security for the day or simply handling a termination privately with respect for the employee’s emotions.

    Example: An employee who was a “cutter” would bring razor blades to work and, when stressed, would go into the bathroom to cut her skin. She told several co-workers, who informed management. Concerned with her bringing sharp objects to work that could be used as weapons, management warned her not to bring them to work and encouraged her to seek counseling. Days later, she was seen with a knife in the bathroom and terminated. She later filed suit for disability discrimination.

    9. Review FLSA status of employees

    The Fair Labor Standards Act requires that employees be properly categorized as exempt (paid a salary and not eligible for overtime pay) or nonexempt (paid by the hour and entitled to overtime pay if work is in excess of a certain number of hours per day or week). Failure to properly categorize jobs can lead to an employer being required to reimburse an employee or class of employees for unpaid overtime allegedly earned over a period.

    Example: A group of employees filed a lawsuit alleging they regularly worked over 40 hours per week and were owed overtime pay.

    10. Open door policy

    A simple way to avoid employment-related problems is open and honest communication. Employees should feel comfortable approaching their employer to discuss employment-related issues. If managers truly have “open doors” to employees, many potential issues can be identified early and rectified before a true problem develops.

    Example: A manager with a volatile personality rarely interacted with his staff. He instructed them to only interact with him by email and not to interrupt him in person with problems. An employee, diagnosed with cancer, needed accommodations to go to chemotherapy and doctor appointments. Uncomfortable with speaking with her manager, she didn’t inform him of her situation and missed many days of work. He terminated her and she sued for disability discrimination.

    Questions? Comments? Contact Josh Holden at ABA Insurance Services via email at jholden@abais.com or call him at 216-903-4597.

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    Next up: Enroll in BWC’s Destination: Excellence programs by May 29 to Earn Rebates
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  • Enroll in BWC’s Destination: Excellence programs by May 29 to Earn Rebates

    As part of the prospective billing implementation, enrollment is currently underway for private employers to sign up for several of the Destination: Excellence programs. Destination: Excellence is a bundle of programs BWC offers that help businesses improve workplace safety, enhance injured worker care and save money on workers’ compensation costs.

    As part of the prospective billing implementation, enrollment is currently underway for private employers to sign up for several of the Destination: Excellence programs. Destination: Excellence is a bundle of programs BWC offers that help businesses improve workplace safety, enhance injured worker care and save money on workers’ compensation costs.

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    Private employers may sign up with BWC between now and May 29 for these programs:

    • Industry-Specific Safety Program, a 3 percent premium rebate for completing loss-prevention activities
    • Drug-Free Safety Program, a 4 or 7 percent premium rebate for incorporating an alcohol and drug testing and education program
    • Transitional Work Bonus Program, up to a 10 percent premium rebate for successfully returning an injured worker released with restrictions back to work

    If you would like additional information, the BWC website has details about the changes and programs. Visit www.bwc.ohio.gov. Click on the Employers tab on the menu. Then select Prospective Billing under the Featured Links tab. You can also contact COSE’s Workers’ Comp team at 216-592-2351.


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    Next up: Entrepreneurial StrengthsFinder
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  • Entrepreneurial StrengthsFinder

    Passion and ideas are not enough to grow a successful business. Entrepreneurs or start-up teams need to possess key characteristics that give them a stronger ability to launch and succeed. Understanding who you are and where you stand as an entrepreneur can help you tap your talents to become successful. Gallup Strengths Center explored this concept, resulting in a book, Entrepreneurial StrengthsFinder by Jim Clifton and Sangeet Bharadwaj Badal.

    Passion and ideas are not enough to grow a successful business. Entrepreneurs or start-up teams need to possess key characteristics that give them a stronger ability to launch and succeed. Understanding who you are and where you stand as an entrepreneur can help you tap your talents to become successful. Gallup Strengths Center explored this concept, resulting in a book, Entrepreneurial StrengthsFinder by Jim Clifton and Sangeet Bharadwaj Badal.

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    “We studied successful entrepreneurs and figured out how to scientifically measure qualities that individuals inherently have that drive them to be successful in this role,” says Badal. The last four years, Gallup has been intensely studying successful entrepreneurs, identifying entrepreneurship as a strategy for economic growth. “We realize that even though there are so many different reasons why someone would start a business and why some businesses are more successful than others, one of the differentiators was the role of the entrepreneur who is at the center of the activity,” Badal says. Now, there is science that explains why entrepreneurs are different, and this can help us hone natural talents and provide tools to drive successful entrepreneurial ventures.

    “The demands of the entrepreneurial role are so complex that any one predictor of success is not possible,” Badal says, prefacing the 10 talents of successful entrepreneurs she lays out in Entrepreneurial StrengthsFinder. “You can’t have one or two characteristics that make you magically successful. In a role this complex, you need a complete set of talents.”  Badal identifies those talents as: business focus, confidence, creative thinker, delegator, determination, independent, knowledge seeker, promoter, relationship-builder and risk-taker.

    Have your StrengthFinder results analyzed by Gallup at COSE’s workshop event on August 13.

    This article originally appeared in the June 29, 2015, edition of Small Business Matters.


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    Next up: Exempt Vs. Non-Exempt Employees: How to Avoid the Sinkhole of FLSA Lawsuits
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  • Exempt Vs. Non-Exempt Employees: How to Avoid the Sinkhole of FLSA Lawsuits

    Get educated on how exempt employees differ from non-exempt employees. Knowing the difference could save your business from a costly FLSA lawsuit.

    In a previous article, you learned the differences between employees and independent contractors. Once a worker is determined to be an employee, the next step is determining whether they are exempt or non-exempt from FLSA minimum wage and overtime pay requirements. The Fair Labor Standards Act requires employers to pay non-exempt employees for overtime hours at a rate of one and a half times their regular pay, with “overtime” defined as more than 40 hours worked in a work week.

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    Properly classifying employees as exempt or non-exempt is the cornerstone of complying with the FLSA. Misclassification is a common ground for lawsuits against employers. Fines, penalties and back pay for FLSA violations can add up to an enormous, even crippling, sum that may far surpass the cost of paying overtime. Further, back pay owed to employees who were misclassified can be doubled as a means of bolstering compliance with the law.

    Know the difference

    With few exceptions, an exempt employee must

    • be paid at least $23,600 per year ($455 per week);
    • be paid on a salary basis; and
    • perform exempt job duties.

    Most employees must meet all three “tests” to be exempt. Exempt job duties include: executive, administrative, learned professional, creative professional, computer science and outside sales.

    In addition, highly compensated employees performing office or non-manual tasks, paid in excess of $100,000, are exempt if they customarily perform one of the mentioned duties.

    Implement your knowledge

    Once you have developed a thorough understanding of the differences between exempt and non-exempt employees, follow these steps to protect your company from FLSA exposure:

    1. Conduct an extensive self-audit to ensure that all employees are properly classified by using the tests mentioned above.
    2. Train managers on wage and hour regulations, and explain how errors negatively affect the company. Remind them that wage and hour compliance is part of their duties.
    3. Educate your staff about company rules regarding overtime, proper time clock usage, meal and rest periods, and all other wage and hour related items.
    4. Determine repercussions for employees who break company rules in this area, and educate the staff on them.
    5. Take all wage and hour complaints seriously, immediately correcting any errors.
    6. Be careful when new positions are added, especially if they are added because of mergers or acquisitions. If the previous company misclassified its employees, you might be responsible even though the merged or acquired entity may no longer legally exist.

    Ohio law

    Under Ohio law, employers grossing more than $150,000 per year are required to pay overtime to non-exempt employees at a rate of one and a half times the employee’s wage rate for any hours worked over 40 within one work week.

    Employers grossing less than $150,000 are not required to pay overtime for hours worked beyond 40.

    In most circumstances, the employer should follow the rule that is most advantageous to the employees when federal and state laws differ. For instance, the current federal minimum wage is $7.25 per hour, but the current minimum wage in Ohio is $8.10 per hour. This means Ohio employers must use the state minimum wage of $8.10, as this is most advantageous to employees. Thus, the minimum overtime rate in Ohio is $12.15 per hour. However, if the employer grosses less than $297,000, it may use the federal minimum wage as a basis for paying overtime.

    Conclusion

    Determining an employee’s exemption status isn’t always simple. It pays to know the rules ahead of time because the wrong classification can trigger a painful inquiry from the IRS and the Ohio Department of Labor, as well as other fines and penalties. Following these tips will help you to stay ahead of the game and ensure that your employees are properly classified—saving your business a huge chunk of change!

    Disclaimer

    This article is made available for educational purposes only, as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this information, you understand that there is no attorney-client relationship between you and the author. In no event should any information contained here be used as a substitute for competent legal advice on your own individual situation from a licensed attorney in your state. For more information on this topic, contact Alex Gertsburg at 440-571-7775 or ag@gertsburglaw.com. Get more legal tips for your business on The Gertsburg Law Firm blog, with new articles every week.

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