Preventing sexual harassment: best practices for employers

Sexual harassment is unwelcome or unwanted sexual behavior based on a person’s gender, gender identity, or sexual orientation. It’s a form of sex discrimination, which is in violation of Title VII of the Civil Rights Act of 1964 (Title VII). Title VII applies to employers of 15 or more employees. This includes private employers, state and local governments, educational institutions, and labor organizations.

In fiscal year 2023, the Equal Employment Opportunity Commission (EEOC) received a total of 25,490 charges alleging sexual harassment. The EEOC and the courts define sexual harassment as unwelcome behavior of a sexual nature that:

• Explicitly or implicitly affects a term or condition of an individual’s employment
• Unreasonably interferes with an employee’s work performance
• Creates an intimidating, hostile, or offensive work environment

Unlawful conduct does not necessarily involve sexual comments or behavior. Offensive conduct targeting an individual because of their sex (e.g., derogatory comments about women) can also constitute unlawful harassment.

Sexual harassment claims and investigations

Sexual harassment in the workplace can lead to lawsuits and penalties, and damage workplace morale. This creates an unproductive, unpleasant, and sometimes even hostile working environment. Employers cannot understate the importance of taking a proactive approach to establishing effective anti-harassment policies and procedures.

An employer’s liability for sexual harassment depends on several factors, including the harasser’s status (i.e., supervisor, co-worker, client, or vendor). Depending on the circumstances, an employer may be liable for sexual harassment acts committed by supervisors, nonsupervisory employees, and nonemployees.

Sexual harassment investigations

When an employee makes an employer aware of a complaint, they have a legal obligation to promptly investigate the complaint. If inappropriate conduct has occurred, the employer must take immediate steps to stop the offending conduct and prevent future incidents of harassment.

An employer must also investigate and address any harassment of which it becomes aware (e.g. information relayed by an employee other than the alleged victim), as it is legally responsible for taking appropriate remedial action, if necessary.

From the employer’s standpoint, the internal investigation should be conducted with the following goals in mind:

• To obtain a full, objective understanding of the facts, including when and where the harassment occurred
• To put an end to inappropriate or harassing conduct

If an employer does not understand the facts and takes immediate action to end any harassment in the workplace, it faces serious sanctions including significant monetary damages. At the same time, a prompt, objective, and fair investigation may resolve the problem before the employee feels it necessary to file a complaint with EEOC or the state civil rights agency. Finally, it is in the best interest of the employer to resolve problems quickly to avoid gossip and morale problems.

Maintain confidentiality

When an employee comes forward with a sexual harassment complaint, an employer cannot promise complete confidentiality. It will likely be necessary to disclose the individual’s name to the person accused of harassment and perhaps to other witnesses to investigate properly. However, it is important to maintain the highest level of confidentiality possible.

Until an investigation confirms allegations of sexual harassment, discretion also protects the alleged harasser. Failing to maintain confidentiality may increase the risk of a lawsuit by the alleged harasser against the employer, alleging defamation of character or invasion of privacy.

Sexual harassment policy must-haves

Implementing a sexual harassment policy is a key part of protecting your workforce. An employee can name supervisors, managers, HR professionals, and third parties as defendants in a sexual harassment complaint. The employee may hold them personally liable for damages. Therefore, it’s essential for employers to implement effective anti-harassment policies and reporting procedures to comply with federal and state sexual harassment laws. Additionally, as a best practice, employers should review their current employee handbooks to ensure that their sexual harassment policies reflect any recent updates to these laws.

Below are eight essential aspects your policy should include.

1. Prohibit inappropriate behavior

Your policy against sexual harassment should prohibit inappropriate or unprofessional behavior, not just unlawful sexual harassment. That way, if an employee’s inappropriate conduct violates the policy, the employer can take disciplinary action– even if the conduct doesn’t rise to the level of unlawful harassment. The policy should focus on the behavior’s impact, not whether the person meant to harass.

2. Provide specific examples

A few examples of conduct that might create a hostile work environment could include sexual jokes or comments, repeated requests for dates, and a work environment where offensive pictures are displayed.

3. Definition

A clear definition of sexual harassment is a must-have. Workplace harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

4. Duty to report

All employees have a responsibility to help maintain a respectful and harassment-free workplace. Encourage everyone, not just those directly affected, to report incidents of inappropriate behavior they witness or hear about. Timely and accurate reporting is crucial for addressing and resolving issues before they escalate.

Make sure employees understand that the company values their reports and takes these concerns seriously. Reporting harassment in any form can foster a culture of openness and accountability.

5. Retaliation

Sexual harassment often involves a supervisor using their power over a subordinate. Employees should feel safe when reporting this behavior without worrying about retaliation. Employees who experience or witness harassment must clearly understand that reporting it will protect them from retaliation, including demotion, termination, or other negative consequences. When employees understand their protections, it fosters an open workforce without fear of retaliation.

6. Complaint procedure

If you want employees to report inappropriate behavior and harassment, it’s important to make the complaint procedure an easy process. Spell out each step clearly and be sure to include alternate avenues for reporting. Employees need to know that if they can’t talk to their supervisor, they can go to HR or another supervisor.

7. Confidentiality statement

Reporting workplace sexual harassment can be embarrassing and uncomfortable. Assure employees that you will keep complaints as confidential as possible and include all steps of the reporting procedure in your policy. The policy should be transparent about the limitations of confidentiality. Explain that the company may disclose some details to conduct a proper investigation but assure employees that you will protect their privacy as much as possible.

8. Employee training

Sexual harassment prevention training provides a great opportunity for an employer to make sure employees are aware of and understand its anti-harassment policy. Employees need to know what sexual harassment is, what the employer’s policy says about it, and how to report it.

Key takeaway

Harassment prevention is about more than simply satisfying legal requirements and avoiding liability. It’s about a thoughtful, forward-looking approach to a culture of respect and equality in the workplace. Granted, employers must comply with legal requirements. Consider legal compliance a floor, not a ceiling. An employer’s goal should be a workplace that promotes respect and equality.

Foster a better organizational culture

Businesses are responsible for providing a safe work environment that protects employees against bullying, harassment, and other forms of hostility. BLR offers employee- and supervisor-specific training on the procedures for dealing with harassment, investigating incidents and determining whether harassment has occurred, and the actions you need to take to stop harassment and correct its effects.