The Risk Grows
You are, no doubt, aware that sexual harassment is illegal. You've probably heard of the staggering monetary damages that have been awarded to employees who bring charges. With the #MeToo movement, and continuous news coverage, the risk grows every day.
Sexual harassment is illegal because it is a form of discrimination outlawed by Title VII of the Civil Rights Act of 1964. That act applies to private employers with 15 or more employees. Many states also have laws that make companies with fewer than 15 employees liable as well.
The foundational component of proving reasonable care is a policy prohibiting sexual harassment. Download a free sample policy below in PDF format.Download Free Policy
The Definition of Sexual Harassment
A practical definition of sexual harassment is: Unwelcome behavior of a sexual nature that creates an intimidating, hostile or offensive environment. The EEOC and the courts recognize two types of sexual harassment.
Quid Pro Quo
Quid Pro Quo essentially means, "You do something for me and I'll do something for you." A supervisor requesting sexual favors from a subordinate is an example of Quid Pro Quo. One important note about Quid Pro Quo: If it happens even once, it's a violation and it's serious.
Hostile Work Environment
Hostile Work Environment includes any sexually oriented conduct or any sexually oriented atmosphere that is intimidating or offensive to a reasonable person. Generally speaking, for courts to uphold a claim of Hostile Work Environment, there must be a consistent pattern of behavior.
You're responsible to act with reasonable care to prevent and eliminate sexual harassment. If you act with reasonable care, your chances of being hit with a claim go way down. Just as importantly, if you can prove you've acted with reasonable care, you are much less likely to have a claim upheld by the EEOC or lose a case in court. Here are the three key elements of reasonable care:
You must have a policy that strictly prohibits sexual harassment. This policy must provide an effective mechanism for employees to report harassment. Most importantly, you must adhere to this policy. If you have a policy and don't adhere to it, it could be worse than not having a policy at all. Behave like your policy says you will and if you have a report, act immediately.
A policy prohibiting sexual harassment is the foundation of reasonable care. But a policy alone is not enough. You should also provide in-depth training for all employees, and especially, all managers. This training should include a test that ensures all employees understand their responsibilities surrounding sexual harassment.
It's not enough to have a policy and conduct training. You must keep records proving you've exercised reasonable care. That includes documentation that employees agreed to your policy and successfully completed your training.
A claim or lawsuit involving sexual harassment can be devastating to any business. But if you have an effective policy, adhere to that policy; provide training to all your employees; and keep adequate records, you will be able to mount an affirmative defense based on having taken reasonable care.