Creating an Effective Sexual Harrassment Policy

Although many men don’t understand or realize it, sexual harassment is widespread within the workplace. Many women—and yes, a few men—will experience sexual harassment during their work careers. While some victims can get beyond the negative impact of sexual harassment, others suffer severe emotional stress.

Even Small Businesses Need a Policy

You, as an employer, need to be particularly aware of sexual harassment issues. No matter how small a business you run, no matter how much you dislike formal workplace rules, you absolutely must have a solid, enforced policy on sexual harassment.

The U.S. Equal Employment Opportunity Commission Offers This Summary Description

It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both the victim and the harasser can be either a woman or a man, and the victim and the harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.

Some states further refine this definition, and those state laws must be adhered to in addition to the federal laws.

Understanding Sexual Harassment Law

At this time, the U.S. law against sexual harassment applies to employers of 15 or more employees. But state laws may differ and may apply to firms with fewer employees. Even if your company is not directly covered by the law, you should honor it regardless—it’s how you should do business anyway.

Suits for damages resulting from sexual harassment may, and from time to time are, brought against employers. Although your company is liable only for the managerial behavior regarding discrimination practice, in the case of sexual harassment, you are responsible for the actions of all employees, coworkers, and even clients and customers.

Sexual harassment suits can generally be classified into one of two categories: “quid pro quo” and hostile environment.

“Quid Pro Quo” Sexual Harassment

“Quid pro quo” harassment occurs when a coworker or supervisor pressures another employee into an unwelcome sexual activity by either promising a positive reward, such as a promotion, or threatening negative consequences, such as dismissal. It is possible to lose a sexual harassment lawsuit even if the suggestion of sexual activity and the threat are only implicit. For example, a supervisor who repeatedly asks a subordinate for a date despite his or her repeated refusal may be deemed to be implicitly seeking sexual favors and, because of the nature of the reporting relationship, tacitly offering “quid pro quo.”

Even if the firm has a policy against sexual harassment, if the single “quid pro quo” situation occurs with only one supervisor, and senior management has not been informed regarding the situation, then the company may be held liable for sexual harassment.

Hostile Environment Sexual Harassment

U.S. courts define a hostile environment using what is referred to as “a reasonable woman standard.” This is because most, but not all, sexual harassment affects women. The courts will hold an environment to be sexually hostile if the behavior is severe and/or pervasive enough for a reasonable woman to feel it is interfering with her work performance or creating an intimidating, hostile, or offensive working environment. Unfortunately, there is a lot of room for interpretation here, and the ruling of one court may differ significantly from that of another.

Because there are activities that one person may find offensive while another does not, the safest route to developing a nonhostile environment within your workplace is to eliminate all activities that may cause offense. You of course need to ban sexual jokes, the posting of female calendars in men’s rooms, or even comments on dress or appearance that may pose offense to some.

Because the courts have interpreted a hostile environment as defined by “a reasonable woman,” you need to pay quick and sharp attention to any feedback from people who feel offended within your workplace.

You Need a Clear Policy on Sexual Harassment

You should have a written policy on sexual harassment no matter how small a company yours may be. Offices that provide employment for two people, with no third party present, can create a sense of tension in some employees from the outset, and can cause the implications of comments, real or not, to be magnified. Small commercial or home office environments might be more conducive to sexual harassment than a big, bustling office employing hundreds.

Your policy should specifically prohibit sexual harassment. You may wish to cite examples of what would be considered sexually harassing behavior. You should implement a grievance procedure that allows complainants to bring their complaints to someone other than their supervisor. Employees should have the option of placing grievances before either a male or a female. If you don’t have enough personnel to effectively set up a grievance committee within your organization, appoint an outsider—perhaps your attorney.

Your written policy on sexual harassment should be posted in a highly visible location and/or distributed to all employees, including new hires. You should go over your policy, verbally, in a company-wide meeting and record any such meetings.

What Should You Do as a Small Business Facing a Sexual Harassment Claim?

If a sexual harassment claim is made, it should be carefully investigated regardless of how trivial it may seem. Remember, each person has a different personal code for what he or she deems to be offensive behavior.

It is important that appropriate steps be taken against any employee whose behavior has been found to be sexually offensive. Depending upon the nature of the offense and its duration, the disciplinary action may only be a quiet closed-door chat, or it may be as extreme as termination of employment.

You absolutely must take appropriate action in sexual harassment matters, but you need to be careful that you don’t trample on the rights and respect due the alleged offender. Determining appropriate disciplinary action won’t be easy, especially if the offender denies the behavior. You should always consult with an attorney when you are facing the ramifications of a sexual harassment charge, especially if the nature of the charge is different than those you may have dealt with previously. Remember, you could end up being sued by both the victim and the alleged offender, and it isn’t beyond the realm of possibility that both claimants could win their legal suits!

Takeaways You Can Use

  • Small business owners may be responsible and liable for sexual harassment in the workplace even if they knew nothing about it.
  • You should set up an easy way for employees to make harassment claims within your company.
  • Pay close attention to employee feedback on their work environment.
  • Even small businesses need a sexual harassment policy.
  • When sexual harassment is alleged, you need to respect the rights of all parties involved.

About Bob Adams

Bob Adams is a Harvard MBA serial entrepreneur. He has started over a dozen businesses including one that he launched with $1500 and sold for $40 million. He has written 17 books and created 52 online courses for entrepreneurs. Bob also founded BusinessTown, the go-to learning platform for starting and running a business.