As I write this article, the newspapers and airwaves are filled with more reports of alleged sexual harassment in workplaces around the country. It’s as though the media has suddenly discovered a whole new world of discrimination to report on. For HR managers, these stories aren’t surprising—they’re frustrating.
Almost every HR department has conducted workplace training that explains what sexual harassment is, the consequences for engaging in such behavior, and the remedies available to the person who is being harassed. Still, the training appears to be ineffective because sexual harassment remains an ongoing issue in places of employment. The question is, why?
What Is Sexual Harassment?
Sexual harassment is defined by the Equal Employment Opportunity Commission (EEOC) as unwelcome sexual advances or conduct of a sexual nature that unreasonably interferes with a person’s performance of her job or creates an intimidating, hostile, or offensive work environment. Sexual harassment is a form of sex discrimination and is prohibited by both state and federal antidiscrimination laws.
Numerous states have their own laws regarding sexual harassment. For example, the New Mexico Human Rights Act (NMHRA) prohibits discrimination based on someone’s sex, sexual orientation, or gender identity, among other classifications. The NMHRA applies to employers with four or more employees. Title VII of the Civil Rights Act of 19640—which is a federal law—prohibits discrimination based on sex in workplaces with 15 or more employees.
Neither statute addresses different types of sexual harassment, but the courts, over time, have made a distinction between quid pro quo sexual harassment (a demand, usually by a person in authority, for a sexual favor in exchange for keeping a job or receiving a benefit) and hostile work environment sexual harassment (an abusive or offensive working environment based on sex).
Surprising Facts About Sexual Harassment
There are many misconceptions about sexual harassment, which is why training is essential. However, your employees may be surprised to learn the following facts:
- Victims and harassers can be men or women. The two employees involved don’t have to be of the opposite sex.
- The harasser can be the victim’s supervisor, a coworker, a supervisor in another department, an agent of the employer, or a nonemployee (e.g., a customer or delivery person).
- Victims can be someone other than the person being harassed (e.g., a coworker who is affected by the offensive conduct).
- Sexual harassment can occur even when there is no economic harm to the victim.
- The harasser’s conduct must be unwelcome.
The Media Is Right: Sexual Harassment Is Pervasive
The EEOC reports that in 2014, its nationwide staff resolved 26,000 cases of sex discrimination and recovered $106.5 million for individuals who had been affected by sex discrimination. The resolutions included charges of discrimination in the hiring process, so the cases adjudicated by the EEOC entailed more than workplace sexual harassment. However, these numbers merely reflect the EEOC charges that were resolved without litigation; they don’t include charges that were resolved through litigation or claims that never resulted in an EEOC charge.
In 2015, the EEOC, working on an initiative to prevent and address sexual harassment in the workplace, heard testimony that one in four women has faced harassment at work. The agency also learned that the vast majority of victims are afraid to report sexual harassment for fear of retaliation. Based on recent media reports, the EEOC’s findings appear to be fairly accurate.
Why Isn’t Preventive Training Working?
As an HR manager, you need to prevent sexual harassment at your workplace, not only to comply with the law and save money for your employer but also because it’s the right thing to do. You’ve conducted preventive training in the past, but what should you do if you suspect it hasn’t been as effective as it should have been? Here are some tips:
- Conduct live engaging and interactive training with talented, experienced trainers. This type of training will cost your company more than video training, but video training may be part of the problem. Video training is boring, and employees usually watch the video with just one eye. Employees are notorious for multitasking when they’re forced to watch video training on company time.
- Make sure your top managers participate in the live training and model appropriate behavior. If your CEO and other top managers don’t buy into a culture of respect and zero tolerance, your company will constantly be fighting an uphill battle.
- Put your antidiscrimination policy in writing, give every employee a copy of it, and make sure they’ve actually read it. Highlight your zero-tolerance policy, and verify that everyone knows to whom reports of sexual harassment should be made.
- Enforce your zero-tolerance policy. That means you have to investigate each and every complaint, no matter how suspicious or trivial it seems, and you must do it as soon as possible. Every complaint must be addressed in the same timely, impartial, and rational manner.
- Communicate. Although a victim of sexual harassment may need the protection of confidentiality, you must still communicate your findings. You should inform the victim what your investigation revealed and what the consequences are going to be. Talk to the enablers of sexual harassment, and warn them of your zero-tolerance policy, or perhaps impose consequences. You’ll also have to communicate your findings to top management so appropriate actions will be taken.
- If your investigation reveals that there has been an incident of sexual harassment, you must impose consequences, no matter who the harasser, or the victim, may be. That may be very difficult in some companies. Certain employees may have been given a “pass” in the past because they were so valuable to the company. One observer has suggested that companies should begin treating sexual harassment as seriously as they would treat embezzlement. An embezzler would be fired immediately, of course. Would your company impose the same consequences if the harasser happens to be a member of top management?
- Lastly, HR must insist on a place at the management table. That may not be the normal practice in your company or industry, but CEOs need to learn to value the importance of incorporating HR expertise into management decisions. You need access to top managers, and their respect, so you can resolve employment problems quickly with the full knowledge and approval of management.
Sexual harassment may the topic of the day, but don’t lose sight of the fact that it’s a very real and pervasive problem in the workplace. Preventive training and communication are the key components to addressing the problem.
While it may take significant resources to present effective training, your company’s investment will undoubtedly pay for itself in the future because you may be able to truly eliminate sexual harassment in your workplace.
|Barbara J. Koenig, an attorney with Jackson Loman Stanford & Downey, and a contributor to New Mexico Employment Law Letter. Koenig is currently the President of the New Mexico Women’s Bar and can be reached at firstname.lastname@example.org.|