Although Herman Cain will not be the next U.S. president, he has the dubious honor of bringing sexual and workplace harassment back into the national spotlight. He may well have done you a favor.
Although the number of sexual harassment charges filed with the EEOC has fallen slightly, there were still 11,717 claims in 2010. According to a recent story in Business Week, many sexual harassment complaints are simply not making it to the EEOC because they’re being arbitrated instead. In addition, the mandatory supervisor training required by A.B. 1825 may lead you to believe that everything is under control, but that’s not necessarily the case. In fact, in 2010, 36 percent of organizations say they have had at least one harassment claim filed in the previous two years.
In a CER webinar titled “Sexual Harassment in California: Identify, Respond, and Prevent,” Marc L. Jacuzzi outlined four practical proactive defenses you can take to not become one of these statistics.
Workplace Harassment Claims Proactive Defense 1: Review Your No-Harassment Policy
The policy should include:
- Statement of the company’s commitment to providing environment free of unlawful discrimination
- Statement of protected categories
- Statement clearly prohibiting employees from engaging in inappropriate behaviors in violation of the policy
- Statement of examples of forms of workplace harassment
- Definition of “sexual harassment”
- Name of the person or officer to which complaints of inappropriate behaviors should be reported
- Statement guaranteeing no reprisal or retaliation for reporting inappropriate behaviors
- Statement describing the complaint process, investigation and communication of corrective action
- Grievance procedure if the outcome of the investigation is unsatisfactory to the complainant, including the name and direction to state and federal agencies
- Name of contact for questions concerning the policy
- Prohibition of third-party harassment
Workplace Harassment Defense 2: Train Your Supervisors
In California, employers with 50 or more employees are required to provide 2 hours of interactive training for supervisors every 2 years (or within 6 months of a promotion to supervisor level). The training and education required must include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against– and the prevention and correction of–sexual harassment, as well as the remedies available to victims of sexual harassment in employment. Jacuzzi noted that “even if you don’t have 50 or more employees, it’s still a good idea to train your supervisors because the law still applies to you with respect to sex harassment.”
This training should be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation. California Fair Employment and Housing Act (FEHA) regulations require that the trainer be one or more of the following:
- An attorney with two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.
- A Human Resources professional or harassment prevention consultant with a minimum of 2 or more years of practical experience designing/conducting harassment training, responding to sexual harassment complaints or other discrimination complaints, conducting sexual harassment complaint investigations, or advising employers or employees regarding discrimination, retaliation and sexual harassment prevention.
- A professor or instructor with a post-graduate degree or California teaching credential and either 20 instruction hours or 2 or more years of experience teaching about employment law in law school, college or university.
Persons who do not meet above qualifications because they lack the requisite experience may team-teach with a qualified trainer.
Workplace Harassment Defense 3: Take Complaints Seriously
“Take harassment complaints seriously,” Jacuzzi noted. “Take prompt action to investigate” regardless of who the complaint comes from. This also means you should not make assumptions on the seriousness of a complaint or whether or not you feel someone should have found a situation offensive. Treat everyone equally by investigating every complaint that comes your way.
Workplace Harassment Defense 4: Fix Any Issues Discovered
Take immediate and appropriate corrective action, if warranted. Once you’ve investigated the situation behind any complaint, be sure to take steps to not only remedy the situation, but also to prevent its recurrence. This may include, for example, disciplinary actions, and training for employees and supervisors.
To register for a future webinar, visit CER webinars.
Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi (www.sgijlaw.com). He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.
Don’t forget to include online and off-hours harassment in your policy, etc. The California Court of Appeals recently upheld a jury award against an employer based largely on its employees’ online, off-site harassment of a disabled co-worker.
Don’t forget to include online and off-hours harassment in your policy, etc. The California Court of Appeals recently upheld a jury award against an employer based largely on its employees’ online, off-site harassment of a disabled co-worker.