The #MeToo movement has brought national attention to the issue of sexual harassment, especially in the workplace. Unfortunately, there are other types of workplace harassment that as a business owner you have to be aware of. What can you do to prevent harassment from happening at your workplace?
Receiving a harassment claim from an employee is a delicate situation. Employers must consider how they will respond to the complaint, how they will investigate the allegations and what guidelines they will use to assess the complaint’s validity. Ultimately, the employer’s response can have a significant effect on whether the employer is found liable for the alleged behavior in the event the complaint results in litigation.
All employees- in any position, from management to entry-level or hourly staffers- should be aware of what qualifies as workplace harassment and avoid these behaviors or report them if they occur.
Common Examples of Sexual & Non-Sexual Harassment in the Workplace
What is considered sexual harassment at work? And how does it differ from non-sexual harassment? Even though it’s the most frequently reported type of a harassment, sexual harassment isn’t the only type that an employer can be accused of. Let’s go over some examples of each.
Sexual Harassment in the Workplace
It doesn’t matter who makes the offense. It could be a manager, co-worker, or even a non-employee like a client, contractor, or vendor. If the person’s conduct creates a hostile work environment, makes it difficult for employees to work, or interrupts an employee’s success, it is considered harassment.
- Sharing sexually inappropriate images or videos
- Sending suggestive letters, notes, or e-mails
- Making inappropriate sexual gestures
- Inappropriate touching
- Hostile work environment
It’s also important to note that sexual harassment is not limited to making inappropriate advances. It includes any unwelcome verbal or physical behavior that creates a hostile work environment. Employees should be able to come into a positive, healthy work environment each day. Unfortunately, that is not the case for every employee and it’s necessary for employers to understand what exactly is a hostile work environment and how to deal with it.
Non-Sexual Harassment in the Workplace
Behavior such as making racist or negative comments can also be construed as workplace harassment. Offensive gestures, drawings, or clothing can also constitute harassment. This type of harassment needs to be addressed the same way you would sexual harassment. Instances of workplace harassment include discrimination such as:
- Using racist slang, phrases or nicknames
- Making negative comments about employee’s personal religious beliefs
- Sharing inappropriate images, videos, emails, letters, or notes
- Displaying racist drawings, or posters that might be offensive to a particular group
- Making offensive reference to an individual’s mental or physical disability
- Any comment, action, or type of behavior that is threatening, insulting, intimidating, or discriminatory and upsets the workplace
Ways to Protect your Employees
To protect your business and your employees in the event of a sexual harassment claim, consider the following actions:
- Create a strictly enforced company policy banning sexual harassment on the job and distribute it to all employees. This policy should define sexual harassment and state that your company does not tolerate any form of it.
- Determine if the conduct was sexual harassment by deciding if the conduct was sexual in nature and if it was unwelcomed by the accuser. The Equal Employment Opportunity Commission (EEOC) says that sexual conduct is unwelcome when the victim does not solicit or incite the conduct in question, or the conduct is considered offensive or undesirable by the victim.
- Employers wishing to determine if conduct was unwelcome need to consider every aspect of the circumstance, including the victim’s speech, clothing, and whether he or she participated in the conduct voluntarily. Each of these factors alone does not necessarily dispute or constitute a sexual harassment claim, but together may invalidate or validate a claim.
- Investigate to determine whether the sexual harassment allegations are valid. To do so, you should already have a system in place for handling these types of situations, including:
- Training certain employees who will receive sexual harassment claims on how to investigate.
- Protecting private information if the complaint would become subject of litigation.
- Seeking legal guidance
- Maintaining confidentiality throughout the investigation amongst all parties involved
- Keeping written records of the following (at minimum):
- Details of the complaint
- Preliminary investigation plan
- Response to the complaint
- Witness statements
- Adjustments or amendments made.
- Investigator’s findings
- Conclusions because of investigations
- Discipline administered.
- Harasser monitoring efforts
- Act immediately after receiving a sexual harassment complaint to stop potentially unlawful conduct.
By adhering to these actions, employers can demonstrate that they take all complaints concerning sexual harassment seriously. In addition, should a complaint result in litigation, a jury is less likely to punish the employer for failing to act because steps were taken to remedy the situation through an investigation.
Ways to Protect Your Business
What if you, a manager, or an employee is accused of harassing another employee? How will you defend your business against these allegations? There is an insurance policy that can help you with the cost of defense and settlements if the allegations get that far. Employment Practices Liability Insurance (EPLI) covers businesses against claims by workers that their legal rights as employees of the company have been violated. Most larger businesses are prepared with this coverage, as the number of employees raises the probability of an allegation of this nature. However, small or new businesses are often the most vulnerable to employment claims due to the fact that they usually lack a legal department or employee handbook detailing the policies and procedures that guide hiring, discipling or terminating employees. Here are some examples of accusations/lawsuits that employers have faced:
Pregnancy Discrimination: Upscale retirement community in Sarasota, Fl violated federal law by refusing to hire and promote a woman because of her potential to become pregnant. Damages of $70,000 were awarded to the claimant.
Disability Discrimination: Two young men, both of whom are deaf, claimed that a store in Arizona refused to hire them because of their disabilities. A payment of $66,250 for each of the boys, plus medical benefits the teens would’ve received had they been hired. Settlement also required that both the boys be offered positions, be provided a sign language interpreter for training and orientation and other workplace changes to accommodate them.
Sexual Harassment: A 16-year-old girl at a Pennsylvania restaurant was reportedly touched and kissed by her 19 year old shift supervisor. She reported that when the incident was brought to upper management, the manager laughed and accused her of making it all up, and got suspended from work. The terms of the settlement included a payment of $150,000 to the girl.
Being a small to medium size business in South Florida, how would you pay for the cost of defending your business if one of the above allegations were brought against you? EPLI is the policy that will pay for your defense in one of these allegations. The cost of EPLI coverage depends on your type of business, the number of employees you have and the various risk factors such as whether your company has already had previous incidents in the past with employees. The policies will either pay for or reimburse you for your expenses of defending a lawsuit in court, judgements, and settlements. It also covers legal costs, whether your company wins or loses the suit.
How The Bunker Can Help
At The Bunker, by using our proprietary process called The Bunker Edge, we focus identifying gaps in your insurance protection and providing solutions based on your total cost of risk as a business and we look forward to working with you! Give us a call at 954-239-7346, so we can help your business move from danger to a safe place.