Good Practices for a Sexual Harassment Policy and Handling Complaints
April 11, 2018
All companies should have a policy on sexual harassment. These policies may be of limited usefulness if the culture of the company does not respect it. However, it is still important to have a base of a strong policy with the following elements:
- Sexual harassment is expressly prohibited.
- The policy must be known to all employees - from the C-suite down to the rank and file.
- The policy should be presented during the course of regular, interactive training. Consider incorporating hypothetical situations from your unique workplace.
- Sexual harassment should be explicitly defined. Sexual harassment includes all of the following: unwelcomed sexual advances, requests for sexual favors, sex-based jokes, slurs, name-calling, physical assaults or threats, intimidation, mockery, insults or put-downs, and offensive objects or pictures.
- There should be multiple channels for reporting sexual harassment incidents.
- The punishments should be clear, known, and consistently enforced.
- The policy should explicitly prohibit retaliation against any person lodging a complaint.
Having a policy is great, but most companies have policies. Even with a strong policy expressly prohibiting sexual harassment, it is likely that employers will still face complaints. Following the #MeToo movement and the general move of victims of sexual harassment toward speaking out, it’s likely that employers will see an increase in such complaints.
The following are some tips for if/when your company gets such a complaint. I’ll also address incidents where the complaint is made against the president of the company or another high-level employee.
Don’t ignore it. There are two reasons this is important:
- First, this might be a first-time violator with a low-level offense. If addressed early, that employee can be punished and counseled quickly and appropriately.
- Second, this might be a repeat violator and the person reporting is just the first person to say something. An investigation into a seemingly small complaint could reveal a much greater problem with this employee.
Build into your sexual harassment policy an option for some complaints to be taken directly to the board.
This is particularly helpful when the complaint is against a high-ranking executive at the company who is high above the paygrade of an HR employee. The policy should identify who can bring complaints to the board and who on the board can receive the complaints. With this, members of the board should be trained in recognizing and addressing sexual assault. Note that under some circumstances, the board has to report to shareholders when a complaint is made. If this situation arises, consult with legal counsel.
HR can send a complaint directly to legal counsel.
This is not the route for every complaint and it is certainly an added expense. However, it’s an avenue that should be available should the allegations be made about someone very high up in the company. Outside legal counsel can’t be directly involved in the investigation, but can advise as to how to conduct the investigation. All of these communications are confidential and privileged.
Employers must institute a strong policy prohibiting harassment and retaliation, and consistently enforce it. In the event an employer gets a complaint, it should address it early and make sure it goes through the proper channels. By doing this, employers can foster a more inclusive and productive workforce.