How to Protect Your Employees and Your Business from Sexual Harassment Claims

Claims of sexual harassment in the workplace are one of the top liabilities that a company can face. We’ve all seen the headlines, especially involving claims in restaurant businesses. Yet, so many businesses still find themselves ill-prepared to prevent sexual harassment in the workplace.

This article will help explain what sexual harassment is and how you can create policies that will help protect your employees and your business. Please note that this article focuses only on sexual harassment in federal law, and not types of harassment based on other protected classes such as race or religion. Additionally, your state and local jurisdictions may have more stringent laws involving harassment, particularly California, so it is best to consult with a local employment attorney who is familiar with the particularities of your state. Nothing contained in this article should be construed to be legal advice.

Defining Sexual Harassment

Sexual harassment is any kind of unwelcome sexual conduct, either verbal or physical, in the workplace. There are two broad categories of sexual harassment that apply based on the conduct involved: Hostile work environment and quid pro quo.

A hostile work environment refers to unwelcome comments or conduct based on sex that are either severe or pervasive such that they unreasonably interfere with an employee’s work performance or create an intimidating, hostile or offensive work environment.

Quid pro quo sexual harassment occurs when a job or promotion is explicitly or implicitly conditioned upon an applicant’s or employee’s submission to sexual advances or other conduct based on sex. Note that this also applies to job applicants who have not yet been hired, not just current employees.

Verbal harassment can occur through ordinary conversation, compliments or unwelcome flirtation, innuendo, jokes, personal inquiries or spreading rumors about the romantic or sexual lives of coworkers, just to name a few.

Sexual innuendo is a remark or question that, based on first impression, doesn’t have a clear sexual meaning; when put in context with other remarks or images, however, it hints at something pertaining to sex or sex organs. Innuendos are often used as a cautious approach toward discussing matters of a sexual nature or as a joke.

When interpreted this way, it can form the basis of unlawful harassment, thus creating an uncomfortable and hostile workplace.

Physical harassment includes unsolicited or unwelcome physical contact and includes: assault, impeding or blocking movement, pinching, patting, grabbing, brushing against or poking another employee’s body, touching a person’s clothing, hair or body, hazing or initiation that involves a sexual component, or exposing one’s self.

Reasonable Person Standard

To reach the level of unlawful harassment, the circumstances must demonstrate that (1) the victim was subjected to verbal or physical conduct that is sexual in nature, (2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive enough to create an abusive working environment and alter the victim’s employment conditions.

The conduct must be more than just an isolated incident, like a one-off joke or instance of teasing. However, a single incident can be severe enough to violate the law or your anti-harassment policy – it truly depends on the effect that the incident has upon the employee’s work environment.

This analysis relies upon the “reasonable person” standard. That is, would a reasonable person who shared the same characteristics as the victim of the unwelcome or unwanted conduct believe that the conduct made it more difficult to do the victim’s job?

Additionally, for conduct to be “unwelcome”, it must not be invited and must be regarded as undesirable or offensive to the victim.

Ultimately, it is not the intent of the conduct that matters when evaluating a claim of harassment – all that matters is how that conduct made the victim feel and if a reasonable person in the same scenario would feel the same way.

Third Party Liability

It is important to note that this conduct may occur between two individuals who do not find the conduct unwelcome or offensive, yet a third party, like another coworker, may find the conduct offensive and make a claim of a hostile work environment.

For example, if two male colleagues throw jokes back and forth to each other that are sexual in nature about women in the workplace, a third-party female colleague who is not involved in the conversation may be able to make a claim of sexual harassment.

Companies may also be liable for conduct caused by a third party, like a vendor or a customer. For example, if your food distributor delivery driver comes into the restaurant each week for a delivery and consistently makes lewd remarks to an employee, the company can be held liable to the victim employee for the conduct of the delivery driver, even though the delivery driver is not an employee of the company. In this situation, the employer must take reasonable action to prevent such behavior from occurring, including terminating a vendor relationship or banning a customer from your establishment to protect the victim employee.

Retaliation

Retaliation against those who makes complaints of harassment is also protected under federal law. Retaliation occurs when a negative employment action is taken against an employee. Examples include failure to promote, demotion or firing, poor performance reviews or denial or merit-based pay increases, reduction in salary or benefits, or reassignment to a different job with different responsibilities.

Examples of activities that are protected and cannot be retaliated against are: good faith reporting of suspected unlawful workplace harassment discrimination, assisting someone else with a complaint, participating in a workplace investigation of harassment, and requesting a reasonable accommodation for a religious or disability purpose.

Legal Actions

The legal ramifications for sexual harassment and/or retaliation extend not only to the perpetrator, but also to the company who allows the conduct to occur at their place of business. Claims for damages can be based on federal or state law, and can also include claims beyond harassment like intentional infliction of emotional distress, discrimination and more. These claims can add up into the six figures and beyond, depending on the severity of the claims. Check with your business insurance carrier to make sure that you have employment practices coverage to defend against these types of claims.

To disprove liability, you must be able to show that you had adequate policies in place to prevent workplace harassment, that you took reasonably prompt and adequate corrective step to prevent it from happening further, or that the employee making the claim failed to take advantage of the preventative or corrective actions made available by the employer.

Note that a defense does not need to disprove that the harassment occurred; only that you as the employer took the appropriate corrective steps to protect the employee from the harassment occurring once you knew, or should have known, about the harassment.

How to Create a Safe Working Environment

First and foremost, every business should have an employee handbook, signed by all employees at the outset of their employment, that contains a detailed policy against harassment and retaliation. This policy should provide a definition of harassment, a definition of retaliation, examples of each, and a zero-tolerance policy for these actions in the workplace. The policy and the handbook overall should be drafted by an employment law attorney.

The policy should also include a complaint procedure process that details exactly how an employee may make a complaint and to whom they should report it to. This policy should also make it clear that if an employee is being harassed by their direct supervisor to whom they would ordinarily report harassment to, to whom the employee may then make their complaint.

Additionally, all supervisors, managers and owners should be trained, in person, on the company’s anti-harassment policies and be well-versed in how to detect, stop and prevent harassment, as well as the process for when a complaint is submitted.

Most importantly, have candid conversations with crew members about this policy and give examples to them so that they know what is appropriate and what is not appropriate.

Listening and watching the actions of your employees and calling out inappropriate behavior in real time will set the standard as to what is acceptable in the workplace. As owners, we have to set the tone and make it clear that harassment is not tolerated, not only for the sake of preventing a potentially costly lawsuit, but also to protect your employees from uncomfortable situations.

Employees who are victims of sexual harassment need your protection and having their back in tough situations like these helps create a positive work environment for everyone. You may not be able to stop every instance of harassment, but taking swift action against the perpetrator(s), no matter how important they are to the organization, will show that you take this seriously. Having a strong policy and enforcement of such policy will ultimately protect your employees and protect your business and reputation.