Suddenly, everyone is talking about sexual harassment in the workplace. Hollywood moguls, television personalities and corporate titans are being held accountable, as the #MeToo movement continues to build. A Washington Post/ABC poll found 64 percent of Americans believe sexual harassment in the workplace is “a serious problem.” Only 47 percent considered it problematic in 2011.
What does this mean for business owners and executives? How do they keep their businesses safe, out of the headlines and away from the courthouse?
The first step is acknowledging that any workplace, no matter how professional and collegial, could have a problem. A 2017 survey by the Society for Human Resource Management found that 30 percent of women surveyed had received an unwanted sexual advance at work. Of those who felt they were victims of sexual harassment, 76 percent did not report it.
In other words, don’t pat yourself on the back if your business has had no complaints about workplace harassment – the majority of instances go unreported.
Note that harassment victims are not necessarily female. Women can harass men, and the law also prohibits same-sex harassment. Harassment becomes unlawful when it is based on sex (or another legally protected category, like race or religion) and is severe or pervasive enough to change the conditions of employment and offend a reasonable person.
Businesses should be alert for red flags, like low morale, high turnover, or gossip about how someone is behaving. Comments like “ignore her, she’s just inappropriate” or “boys will be boys” are warning signs.
Be aware of risk factors in your business. If there are “superstar” employees who are considered to be untouchable because of the revenue they produce or the skills they possess, harassment claims are more likely. Any significant imbalances of power are a risk, as are night shifts, remote work locations, and departments/operations that lack diversity (e.g., a construction site with one female welder).
The best defense against workplace harassment is a healthy company culture. Businesses should strive to:
Create a culture of genuine respect and equality
Apply the same rules to everyone, from the custodian to the CEO
Cultivate a workplace of upstanders, not bystanders
“Upstanders” are people who will speak up if someone crosses a line, even if the behavior is not directed at them. Most people would rather mind their own business, especially in an awkward situation or a conflict, so businesses should proactively encourage their employees to speak up.
Anti-harassment policies are important – they should be updated regularly and should include multiple ways for an employee to report a concern. A good policy encourages employees to report issues to a supervisor, to human resources, or even to the company president. Hotlines can be used to allow anonymous reporting.
Training is also critical. If the company has the resources to hire an attorney or consultant to conduct live training sessions, it should do so. Studies show that online training modules are not effective, probably because people multitask when training online.
Training sessions are most effective when the anti-harassment message comes from the top. Ideally, the business owner or president should introduce the training, encourage dialogue and actively participate. If there are multiple training sessions, a senior manager should participate in each one. Of course, attendance records should be kept.
Given the #MeToo movement, employers can expect an increase in harassment claims. Savvy businesses should take this opportunity to assess their risks, improve policies and training, and cultivate a healthy corporate culture.
Vianei Lopez Braun is a shareholder in Decker Jones, P.C. She represents employers in many business sectors and provides litigation defense, training and practical advice.