By Earl Capps, Web-don, Inc.
Lately, it seems that sexual harassment and misconduct allegations have been all over the news. As sexual harassment can do costly and lasting damage to a business, not to mention the personal impact it can have upon those involved, it’s important to prevent misconduct before it occurs, as well as handle situations that may arise in a proper and professional manner.
Allegations of workplace sexual harassment can become expensive for a company to investigate and defend against, especially if the complaints are found to be credible. Here are some examples of what is being awarded to accusers when their allegations were found to have merit:
- $168 million was awarded to a California physician’s assistant.
- Fox News paid $13 million to settle sexual harassment claims filed by five women.
- In 2015, the Equal Employment Opportunity Commission (EEOC) recovered $164.5 million from employers for those who filed workplace harassment complaints.
What is considered Sexual Harassment?
It’s important to understand what constitutes sexual harassment in the workplace. There are two categories of conduct that can be considered sexual harassment:
- QUID PRO QUO: “Quid pro quo” is a Latin term for “this for that”. In these situations, one person forces another to tolerate or participate in sexual misconduct against their wishes, either in anticipation of receiving something in return, such as a promotion, raise, or desired position, or to avoid having something taken away, such as their job.
- HOSTILE WORKPLACE: Conduct of a sexual nature, including jokes, emails, gestures and printed materials, which interferes with the work of another or creates an undesirable working environment.
Preventing sexual harassment can have a direct impact upon the well-being of an organization and its operations. Studies have shown the most noted effects of sexual harassment in a workplace are decreased job satisfaction, lower performance on the job, increased absenteeism, reduced workplace morale, mental and physical health issues with employees, greater potential for workplace conflicts, as well as increased employee turnover.
In addition to the financial costs, accusers can go public and do great harm to a company’s reputation. Last year, a Charlotte restaurant employee was forced to discuss her sexual harassment allegations in front of the manager she accused of misconduct – and fired during the short meeting. The employee released a secretly-recorded video of the meeting to the news media, which resulted in several local and national news stories as well as a flood of negative comments on the company’s social media sites.
Focus on Prevention
Focusing upon these areas can help protect both your employees and your business from sexual harassment:
- EMPLOYEE HANDBOOKS: A first line of defense against sexual harassment is to clearly define appropriate conduct in your workplace and communicate these with employees. When people know the rules, they are more likely to follow them – and when they don’t, you can stand on more certain ground in handling them. Max Richardson, Senior Vice President for Marsh & McLennan, a Charlotte insurance agency, advises “Employers should have a well-developed employee handbook outlining their company’s culture and ‘no tolerance’ policy on this topic – sexual harassment.
- TRAINING & COMMUNICATION: Employees should understand the rules of conduct. Periodic meetings and training materials can play key roles. Managers should be coached to set positive examples, step in when they see misconduct and handle employee complaints fairly and in a manner consistent with company policies. Courts have recognized the presence of training programs as a defense that employers can use in court to reduce awards and even get cases dismissed.
- INSURANCE COVERAGE: Ensure you have insurance coverage for employee misconduct with Employment Practice Liability Insurance (EPLI) coverage, which can be obtained as part of your business insurance coverage. This coverage will help defray the costs of handling lawsuits and EEOC complaints, limiting a business’ cost to a per-instance deductible. Ask your insurance agent or broker if your organization is covered.
- BEST PRACTICES: Allegations should always be handled consistently and fairly with clear rules & instructions in how situations involving sexual harassment are to be handled. Max Richardson cautions that each instance of suspected misconduct “should be handled in the exact same manner. Both employee handbooks and procedures for handling complaints should be reviewed by an attorney.”
- DISCRETION AND SENSITIVITY: While not every allegation may seem credible, allegations should be taken seriously, and the accuser treated with respect – with the knowledge everything said and done can appear in a court of law, the court of public opinion – or both. In a time where a phone can record video and emails can be printed or forwarded, it’s easier than ever for someone to prove their case or present evidence of inappropriate handling of complaints.
A recent story in the New York Times talked about the “Pence rule”, a long-running practice by Vice-President Mike Pence to not eat alone with women or drink alcohol without his wife present to avoid accusations of misconduct. While this may help avoid situations, it important to note that courts, beginning with the 1998 U.S. Supreme Court ruling in Oncale v. Sundowner Offshore Services, Inc., recognize same-sex sexual harassment. This means one should always be on their best behavior with all employees, not just those of the opposite sex.
Resources
If you aren’t sure about how these issues are being handled, you may want to reach out to your insurance agent/broker or an attorney you trust. They’re usually glad to provide guidance and ensure your interests – as well as those of your employees – are protected. Most employees believe in fair treatment and respect towards each other and most business owners and managers share those beliefs. The biggest challenge often lies in putting those principles into practice.
Having sound policies and practices regarding sexual harassment in place – and enforcing them fairly and consistently – can help you look out for your employees, protect your business and build your company’s reputation as a fair and professional employer.
