Sexual Harassment Basics
Types of Harassment
Liability and Harassment
When Harassment Occurs
After the Investigation
Title VII of the Civil Rights Act of 1964
Equal Employment Opportunity Commission (EEOC)
Age Discrimination in Employment Act of 1967 (ADEA)
Title I of the Americans with Disabilities Act of 1990 (ADA) and Americans with Disabilities Act Amendments Act of 2008 (ADAAA)
Civil Rights Act of 1991
Equal Pay Act of 1963 (EPA)
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, 4/2010
Steptoe & Johnson LLP, Confidentiality Policies that Survive EEOC and NLRB Scrutiny, 2/2019
Nolo, Conducting Investigation Interviews, 2019
California Government Code - Section 12950
California Government Code - Section 12950.1 - Assembly Bill 1825
California Government Code - Section 12950.1 - Assembly Bill 2053
California Government Code - Section 12950 and Section 12590.1 - Amendments - Senate Bill 1343
California Government Code - Section 12950, Section 2, and Unemployment
Insurance Code Sections 14005 and 14012 - Amendments - Senate Bill 396
California Code of Regulations - Title 2 Administration, Division 4 Fair Employment and Housing Commission - Section 7288 - Harassment Training And Education
Recognize what constitutes sexual harassment, its negative impacts, and the importance of having a sexual harassment policy
Define the terms gender identity, gender expression, sexual orientation, transgender, and gender stereotype
Identify examples of physical, verbal, and displayed harassment, quid pro quo sexual harassment, electronic harassment, and abusive conduct
Identify who is liable in harassment situations
Recognize the actions an employee, a bystander and a supervisor should take when harassment is observed and/or reported
Recognize proper conduct and procedures for working on a harassment investigation, as well as protections that should be implemented during an investigation
Identify expected responses and consequences after an investigation
Recognize examples of retaliation due to complaints of harassment and discrimination
Describe actions employees can take to help prevent harassment in the workplace
Describe steps employees and management can take to prevent sexual harassment in the workplace
In 2011, over $52 million dollars in monetary benefits were awarded in these cases outside of litigation; when figuring for the costs of litigation in private civil suits brought against employers, the number is dramatically higher.
US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991 prohibit discrimination of any kind. Sexual harassment is a form of sex discrimination.
In management, you have to have a plan for addressing sexual harassment in the workplace, and you should provide training on at least an annual basis, because sexual harassment is, first, a crime, but it is also an expensive one that threatens the viability of your operation.
Sexual harassment incidents trouble the work environment by establishing a negative setting that can ruin working relationships, lower productivity, result in costly administrative actions and even more expensive litigation. You need to protect your employees from sexual harassment and educate them on the explicit policy, encouraging them to report violations freely.
Adherence to the sexual harassment company policy is essential. A zero-tolerance policy is the best option. This will help you avoid liability and disciplinary action by fulfilling your management responsibilities. It will also help reduce the number of sexual harassment incidents.
Employers are liable for unlawful harassment by supervisors. Supervisory authority is determined by a person's job function rather than job title.
An individual is qualified as a supervisor if the individual has authority to:
Undertake or recommend tangible employment actions affecting the employee, or;
Direct the employee's daily work activities.
Employer Responsibilities Under California AB 1825
Provide all managers and supervisors with sexual harassment training.
Ensure the company has a written sexual harassment policy.
Distribute the written company policy to all employees.
Have managers/supervisors read and acknowledge receipt of company's written harassment policy.
Ensure the company policy includes a complaint process with appropriate sanctions for inappropriate behavior.
Provide an alternate reporting avenue beyond employee's immediate supervisor (e.g., HR or Senior Manager).
Express strong disapproval of sexual harassment.
Appropriate Employer Response to Sexual Harassment Charges
Conduct proper investigations when necessary.
Take prompt and effective corrective action.
Ensure the victim is "made whole" -- try to resolve issues to the satisfaction of the employee that brings forward any claim.
The Essential Elements for a Company's Harassment Policy
A definition of harassment.
Direction to those who believe they are being harassed, including an alternative for reporting other than their immediate supervisor (e.g., HR a Senior Manager).
A commitment to investigate complaints and take appropriate, prompt, and effective action.
A statement that retaliation will not be permitted against anyone who makes a complaint or cooperates with an investigation.
Supervisor Responsibilities Under California AB 1825
Maintain a work environment free of sexual harassment.
Be able to identify sexual harassment.Prevent sexual harassment incidents.
Respond effectively to sexual harassment.
Understand federal and state laws and your company's policy.
Create and maintain a positive, productive workplace.
Model appropriate behavior.
Contact Human Resources with concerns and complaints.
Take appropriate steps to eliminate behavior that might be perceived as sexual harassment.
Investigate every complaint.
Maintain confidentiality, except for disclosure reasonably required by the investigation.
Hostile Work Environment Sexual Harassment
Sexually harassing behaviors by a manager, supervisor, another employee, or a third party, that are sufficiently severe, persistent or pervasive to unreasonably interfere with an employee's job performance;
Courts employ "reasonable person" standard;
A person does not have to be the target for a hostile work environment to occur.
What Management Should Do to Prevent Sexual Harassment
Develop and publicize a sexual harassment policy that clearly states sexual harassment will not be tolerated and that explains what types of conduct will be considered sexual harassment.
Develop and publicize a specific procedure for resolving complaints of sexual harassment.
Develop methods to inform new management and employees of the company's sexual harassment policy and reporting procedure.
Conduct annual sexual harassment awareness training for all employees.
How to Educate Employees to Prevent Sexual Harassment
Create and maintain a positive, productive workplace.
Model appropriate behavior.
Observe interactions in the workplace.
Stop harassing behaviors immediately.
How to Educate Management and Employees to Prevent Sexual Harassment
Conduct sexual harassment awareness training for all employees regularly.
Review the company sexual harassment policy.
Outline acceptable, unacceptable, and illegal behavior.
Explain the company's no tolerance policy.
Outline the consequences for inappropriate behaviors.
Explain how to respond to harassment.
Explain how to report it if it occurs.
Encourage employees to read the company policy.
Act quickly when you observe harassing behavior.
Assure employees that incidents of sexual harassment will be dealt with promptly.
Disapprove strongly when made aware of or observing harassing behavior.
How to Create and Maintain a Positive, Productive Workplace
Keep communication lines open.
Establish clear work goals and expectations.
Get to know your employees.
Orient new employees.
Maintain high visibility in the workplace.Foster teamwork, assess employee interactions, and correct conflicts.
Reward positive, productive behavior.
Establish mutual respect as a norm.
How to Model Appropriate Behavior
Treat all employees fairly.
Implement policies consistently.
Participate in training.
Openly discuss harassment with all employees.
Model how to treat other employees without discrimination.
Act quickly when any harassing behavior is seen.
Ask Human Resources for help when in doubt.
Sexual harassment is a crime that creates a whole host of problems in the workplace. First, no one should have to work with the fear of being subjected to unwanted advances from colleagues. Sexual harassment has a chilling effect in the workplace that fractures working and personal relationships, and damages the reputation of employers that foster such an environment. Liability is high in sexual harassment situations, so there is good reason to take every measure possible to deter sexual harassment behavior.
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