#MeToo Movement
The MeToo movement began to spread virally in October 2017 following the multiple sexual-abuse allegations made against Hollywood director, Harvey Weinstein. The movement has expanded outside the entertainment industry and has resulted in several prominent politicians stepping down amid allegations of sexual assault. The movement has also resulted in state legislatures across the country passing more stringent laws meant to curb sexual harassment in the workplace.
Impact of Sexual Harassment on the Workplace
In the wake of the MeToo movement, we know that workplace sexual harassment is prevalent in almost every industry and across the country. We also know that the victims are both men and women of all ages. Finally, we know that sexual harassment often results in highly valued employees quitting their job, in order to escape the sexual harassment. Thus, many employers have lost highly qualified employees due to sexual harassment. In addition, sexual harassment in the workplace can often lead to costly litigation.
What should Employers Do?
Every business should have a Sexual Harassment Policy. This policy should be posted in a highly visible location. In addition, if at all possible, training should be offered to employees so that they understand the Sexual Harassment Policy. (In several states Workplace Sexual Harassment policies and training are required. Make sure to consult the employment laws in your state.) Employers should offer a separate training to managers and supervisors, to instruct them on how to handle sexual harassment complaints.
How to Write a Workplace Sexual Harassment Policy
An employer should first consult their state’s employment laws to see if there is any state specific requirement. Barring that, some general guidelines are to include a definition of sexual harassment, to describe who is prohibited from committing harassment, to include a confidentiality clause, discuss timelines, describe investigation procedure, discuss remedial measures, and finally prohibit retaliation.
- Defining “Workplace Sexual Harassment”
Sexual harassment at work is a type of unlawful discrimination. The law defines sexual harassment as unwelcome verbal, visual, non-verbal or physical conduct of a sexual nature or based on someone’s sex that is severe or pervasive and affects working conditions or creates a hostile work environment.
2. Prohibition on Harassment
It is wise to state that the policy prohibits sexual harassment by coworkers, supervisors, and third-parties with whom the employee comes into contact.
3. Confidentiality Statement
Employers should attempt to include a confidentiality statement in regards to sexual harassment complaints. An example would be “All complaints of unlawful harassment will be handled in as discreet and confidential a manner as is possible under the circumstances.” While it is understandable that an investigation may result in the loss of confidentiality, all attempts should be made to maintain the confidentiality of the accuser’s information.
4. Timeline
Victims of sexual harassment want to know that their complaints will be investigated in a timely manner. The policy should state that “the complaint will be investigated in a timely manner” or similar verbiage.
5. Discussing Investigative Procedures
The policy should clearly indicate who should receive sexual harassment complaints. It should also describe that the investigation will be impartial and will be completed by qualified personnel. Also state that the investigation procedures will be documented.
6. Discuss Remedial Measures
Employees need to know that sexual harassment investigations could result in action by the employer. A sample policy might state “Any employee engaging in harassing behavior will be subject to disciplinary action, including the possible termination of employment.”
7. Prohibit Retaliation
It is extremely important that the Workplace Sexual Harassment Policy conveys that employees that file a Sexual Harassment complaint will not encounter retaliation and that retaliation is prohibited.
Other Possible Solutions
As evidenced from the MeToo movement, while many actions may seem egregious, they may not amount to sexual harassment under the law. Thus, some employers have begun to use restorative justice techniques to remedy transgressions that make the victim extremely uncomfortable. The benefit of this to employers is that it is often less expensive than traditional legal remedies and in many cases allows for the accused and accuser to continue to work for the company. The benefit to the accused is that he/she can use it as a learning opportunity so that he/she can correct the behavior and avoid court. The use of restorative justice to resolve sexual harassment complaints is still fairly new and also fairly controversial.
Conclusion
Employers should consult their state’s employment laws for specific guidelines when drafting a Workplace Sexual Harassment Policy. In addition, employers should recognize that the value of having a Workplace Sexual Harassment Policy is not just to avoid litigation. Having a policy communicates to employees what is expected of them and may result in less sexual harassment.
Sources:
https://www.equalrights.org/legal-help/know-your-rights/sexual-harassment-at-work/
http://www.dailycal.org/2018/02/13/restorative-justice-uc-berkeley-sexual-harassment/
Photos:
https://www.theguardian.com/world/2017/oct/16/facts-sexual-harassment-workplace-harvey-weinstein
