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October 1, 2003
Kenneth M. Baylor Republic Services Inc. Ft. Lauderdale, Fla.
EVER SINCE A NATIONAL AUDIENCE was glued to the coverage of the Clarence Thomas-Anita Hill case in 1991, sexual harassment has been evolving into more than a backwater legal theory. Today, rights awareness, clear employer policy and prevention measures streamline what is considered acceptable behavior at work. Completely eliminating sexual harassment is impossible. However, employers who make every effort to inform employees of their rights and protect them when they are violated place themselves in a defensible position if cases or investigations arise.
Sexual harassment, which is defined in the Civil Rights Act of 1964, may be verbal, physical, written or visual. Examples may include unsolicited verbal sexual comments; suggestive comments; repeated propositions; offensive sexual joking; sexually oriented verbal comments about an individual's body; offensive touching, patting or grabbing; and pressure for sexual favors in return for special treatment on the job.
The Washington, D.C.-based Equal Employment Opportunity Commission (EEOC) has created guidelines that stress the need for employers to establish, publish and enforce policies to prevent sexual harassment and effective complaint procedures. Employers also should regularly train employees regarding their rights and responsibilities. To meet the EEOC's expectations and provide an affirmative defense against claims, many organizations have taken steps to prevent sexual harassment and resolve allegations.
The first step is to place the policy in writing. The policy should include the company's definition of sexual harassment and provide examples of prohibited conduct. Outline a complaint procedure that encourages individuals to come forward to a designated official and report any sexual harassment incidences. Make assurances that all complaints will be taken seriously and that employees will be protected from retaliation if they report sexual harassment. The consequences for violations should be made clear.
Next, the policy should be publicized and distributed to employees. Post the policy in conspicuous places throughout the work site and on Intranets. Keep documentation that employees acknowledge and understand the policy in their personnel files.
After an organization establishes and disseminates its sexual harassment policy, train employees comprehensively at every level. Effective training will explain what sexual harassment is and how claims will be investigated. During training, role-playing and case studies will illustrate the purpose of the policy and will highlight key points. Emphasize and document attendance to stress employee accountability.
If an allegation is reported, it should be taken seriously and investigated immediately. The investigator or designated official must be qualified to objectively gather and examine the facts. Signed statements from every witness should be obtained and should include: details of what happened; when the incident occurred; who was involved; and names of other witnesses. Again, participation and confidentiality should be honored, and all facts must be handled with discretion.
Upon completion of the investigation, the results should be reviewed with the complainant and alleged harasser. If no merit was found, provide an explanation. Meritorious claims must be followed by corrective action, which may include termination. Regardless of the outcome, the employer should follow up with the parties at a later date to ensure the matter is resolved. By taking these steps, the risk of sexual harassment in the workplace will be significantly reduced.
Despite clear laws, comprehensive policies, extensive training and severe penalties, eliminating sexual harassment can be challenging. For employees and employers, the key to avoiding misunderstandings and allegations of sexual harassment is to identify the relationships employees have with one another. Because some employees may have known one another for a long time, their exchanges may appear more intimate than what normally occurs among employees who have just met. However, workplace realities suggest that we cannot create an antiseptic environment to achieve perfect compliance with law and policy.
In the real world, sometimes the best defense does not require obtaining legal advice and making employees read a lengthy policy. Employers can privately ask employees who display unprofessional behavior at work the following questions: How would you feel if your son, daughter or spouse were subjected to your comments and behavior at work? How would you feel if you read the front page of the newspaper and found coworkers quoting what you say and commenting on how you conduct yourself at work?
If employees can answer the question without feeling a sense of embarrassment, they most likely are conducting themselves in a professional and respectful manner.
Sexual harassment can occur among employees regardless of their race, gender, economic background and class boundaries. But despite numerous legal and regulatory prevention measures, an effective recourse against sexual harassment is common sense.
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