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Attention Employers: Are You in the Best Position to Protect Yourself against Sexual Harassment Claims?

Author: Jeremy Hesselbein, Ginny Cascio Bonifacino Date: 11/24/2017

Categories: Corporate and Business Law, Employment Law & Litigation, Legal Issues For Restaurant Owners

It is hard to turn on the news these days without hearing about a new executive, celebrity, or news personality being accused of sexual harassment. These accusations are sometimes followed by news of large settlements or verdicts (often in the millions).

You may think that this will not affect your business because you are a smaller one, but it is important to remember that ALL employers can face sexual harassment claims. The difference is that you can take steps to protect yourself now to prevent any sexual harassment.

What is sexual harassment?

First, it is important to understand what is sexual harassment. It is a form of sex discrimination, and it includes behaviors such as unwelcome sexual advances, requests for sexual favors, stereotypical comments demeaning to one gender or the other, and other verbal or physical conduct that singles out one or more individuals based on his or her sex when: (i) submission to that conduct is made either explicitly or implicitly a term or condition of employment; (ii) submission to or rejection of such conduct by the individual is used as a component of the basis for employment decisions affecting that individual; or (iii) the conduct has the purpose or effect of substantially interfering with any individual’s work performance or creating an intimidating, hostile, or offensive working environment. Employers are legally obligated to take steps to prevent sexual harassment and, if it occurs, then to eliminate it.

How can you protect your business?

1.  Implement a sexual harassment policy.

You should have a sexual harassment policy that includes a few key points: (i) a definition of what constitutes sexual harassment; (ii) who is protected by the policy; (iii) how an employee can make a complaint; and (iv) what you will do after a complaint is made. The complaint process must include at least two senior people.  If an employee feels harassed by the CEO, then he or she must have another person to turn to. Managers must also be instructed to report any complaints directly to senior management.

2.  Train your employees.

Having a policy is a great start, but it does no good if it just sits in the Employee Handbook – you have to train your employees! Training is not as daunting as it sounds. Once a year, during a staff meeting or while on-boarding a new employee, have each employee review the policy and give him or her an opportunity to ask questions. You may also want to have a longer training depending on the issues faced in your workplace.

3.  Investigate any potential claims. 

If an employee makes a complaint, you must immediately investigate it. Under the law, an employee does not need to file a formal written complaint. He or she only needs to mention it. The investigation should be done as confidentially as possible to minimize disruptions to the workplace and embarrassment of the parties. It can be done either internally or by a third party depending on the situation. The important thing to remember, however, is to act quickly and investigate thoroughly.

4.  Take Action.

If the investigation reveals that there was sexual harassment, then you must act immediately to deal with the present instance and also prevent any future sexual harassment. The action taken will depend on the severity of the conduct, including individual sexual harassment training, unpaid suspension, and immediate termination. Sexual harassment should not be taken lightly.  It must be remedied or your business could be liable.

By utilizing these steps, you will help protect your business from sexual harassment claims. The above list is not exhaustive, and there may be other ways to protect your business. I am happy to help if you have questions or would like to further discuss this topic. Please feel free to reach out to me by e-mail or (240) 778-2315.