Not to Be Ignored: Sexual Harassment

Your window and siding company has just hired a new office manager. Pam is brisk and efficient. She’s also friendly and quite attractive. Soon enough you notice Bob, one of your sales guys a decade her senior, hanging around Pam’s desk. He asks her out. She tells him she’s engaged. He asks her out again. She tells him she happens to know he’s married. But Bob doesn’t go away.
 
After a few weeks Pam comes to you, the company owner, to report this behavior. You’ve known Bob for 10 years, you tell her, and that’s just his way. It’s Bob being Bob. What you don’t say is that Bob is the top producer on your sales team and you don’t really want to confront him. You figure things will settle down soon. So you’re a little taken aback when Pam resigns two weeks later, and truly surprised when she sues you, your company, and Bob for sexual harassment. 

Workplace Stats Show Harassment Widespread

If you don’t think this could happen, you’re living in a time warp 50-some years back, a time before workplace protections were enshrined in legislation, beginning with  the 1964 Civil Rights Act, then progressively augmented through the years ("The History of Sexual Harassment Law"). According to information released annually by the U.S. Equal Employment Opportunity Commission (EEOC), 91,503 charges of workplace discrimination were filed in fiscal year 2016, and of these 26,073—30.7 percent—involved sex. While many cases investigated by the EEOC are dismissed—52 percent of them in 2015, according to The Guardian—a significant number are investigated, and 25 percent result in outcomes “favorable” to plaintiffs, including “negotiated settlements, withdrawals of claims but with benefits, successful conciliations and unsuccessful conciliations.” (“Sexual harassment at work: more than half of claims in US result in no charge,” by Mona Chalabi.)  

Sexual harassment tends to involve fellow employees more often than managers. A 2013 Huffington Post poll of 1,000 adults found that while 13 percent of those responding said they’d been sexually harassed at work by a manager, 19 percent said they’d been harassed by a non-managerial co-worker. Three out of four chose not to report it. Go along, get along.

Sexual harassment in the construction industry is virtually a cultural cliché via construction site ogling and wolf whistles. If you saw it in a movie, you’d recognize it immediately and maybe laugh at the stereotype. But in Prospect Heights, NY, no one was laughing. “After construction workers sexually harassed women passersby at a 22-acre site in Prospect Heights, New York, the four companies employing them have taken an unusual step,” reported Holly Kearl the Huffington Post last year (“Making it Easier to Report Sexual Harassment Isn’t Enough”). “The employees will each wear a different colored hard hat to coincide with their company and they have new badges and hard-hat stickers to make it easier for harassed persons to identify and report their perpetrator.”

Manage for Harassment

What’s on-the-job harassment in the industry look like? It looks like an unsettling combination of unwanted attention as well as entitled and inappropriate behavior. Not being aware of what that law, or body of law, is, and how it affects your company, could set you up for a five- or six-figure lawsuit, and/or an investigation by state and federal authorities.

And apart from being illegal and making your company the subject of a suit, sexual harassment is also toxic to productivity and the workplace, creating, as the EEOC terms it, a “hostile work environment.”  Think about the three out of four who don’t report it. If you sit back and do nothing, reasoning that boys will be boys, you leave employees to wonder: If he’ll tolerate that, what won’t he tolerate? In effect you’re abdicating your responsibility as a manager and owner.

“When an employee complains that he or she is experiencing sexual harassment of any type, the employer has a legal, ethical, and employee relations obligation to thoroughly investigate the charges,” notes Susan M. Heathfield (“How to Legally Handle an Employee Sexual Harassment Complaint”). In fact, she points out, you’re obliged to investigate should you merely hear rumors about that kind of behavior going on in your workplace. And that kind of behavior might involve not just employees and managers but customers and vendors (i.e., the FedEx guy, etc.). 

If a complaint of sexual harassment is brought to your attention, treat it with the seriousness it deserves. You’ll need to conduct an investigation by interviewing each party, confidentially, as well as witnesses. Ask open-ended questions. Find out who, what, where, when, and how. Listen respectfully and take notes. Be aware that “harassment” is legally defined not as the intent—maybe the over-confident Bob thought he was just being friendly—but as the effect. The effect of his behavior was to make the office manager (and perhaps  those working around her as well) extremely uncomfortable. 

When you put together a report based on your documentation, you’ll need to decide—and state in the report—whether sexual harassment took place. If you determine that it did, you now have a choice: training, discipline, suspension, or, in severe cases, termination. 

A Preemptive Policy

If you have no sexual harassment policy at your company, all this would seem like it was coming right out of the blue. How do you investigate someone for violating a rule that doesn’t exist? That’s why every company with employees needs to have a written policy defining (with examples) sexual harassment, stating that it will not be tolerated, and specifying the consequences for violating the policy. The policy should be included in your company handbook, and signed off on by every employee so that no one can say they didn’t know about it. Websites such as Rocketlawyer offer customizable samples (“Make Your Free Harassment Policy”), as do membership organizations, such as the Society For Human Resources Management.

This may seem like a lot of time to spend on something that isn’t noticeably a problem today, but bear in mind that, first of all, compliance is the law, and secondly, that a well-constructed sexual harassment policy coupled with the message that you or your managers are certain to follow up on complaints, will go far toward eliminating this kind of behavior. Imagine, for example, that Bob knew the company had such a policy. He might think twice about flagrantly ignoring it. If he did ignore it and engaged in a persistent pattern of harassment, and if you investigated and took action, you and your company would likely be off the hook should a formal complaint be filed with a state or federal agency (i.e., the EEOC).

“Not only do [sexual harassment policies] enable employers to make it clear to their employees that certain types of behavior are intolerable,” notes legal website findlaw, “they may also provide a defense for an employer should a lawsuit arise. However, if a written policy is in place, the employer must make sure to follow it.” (“Sample Anti-Discrimination and Harassment Policies.”)

You’re in charge. It’s up to you.