For some small businesses, crafting a policy to prevent sexual harassment may not seem pressing, given all the tasks at hand.
In fact, in a recent Manta survey 41 percent of small-business employers said sexual harassment policies were “unnecessary given my small number of employees,” and 11 percent said such rules were “too PC for my company’s culture.”
But failing to have a policy could create a climate in which sexual harassment goes undetected or unreported, and that could leave the business vulnerable to litigation.
According to the U.S. Equal Employment Opportunity Commission, sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Without a policy, companies “are playing with fire,” says Dario Ambrosini, chief operating officer at Columbus, Ohio-based Manta, an online community for small businesses.
Many owners may think they don’t need a policy because Title VII of the Civil Rights Act, which prohibits sexual harassment in the workplace, is worded in such a way that it applies to employers with 15 or more employees, he explains.
But they could still be running afoul of state and local laws that don’t necessarily have a minimum requirement to file these types of lawsuits, he says.
For instance, the New York State Human Rights Law, the state equivalent of Title VII, applies to employers with four or more employees, notes Christopher Gegwich, a partner at the Nixon Peabody law firm in Jericho.
But even that doesn’t make smaller employers immune.
Last October, Gov. Andrew M. Cuomo signed legislation that, for purposes of sexual harassment only, expands the State Human Rights Law anti-discrimination coverage to all employees, regardless of employer size, Gegwich says.
Bottom line: Having a policy is prudent, he says. It not only helps prevent sexual harassment, but there are certain defenses in sexual harassment cases that are only available to employers if they have an anti-discrimination and anti-harassment policy with a complaint procedure.
Kimberly Malerba, chair of the employment law group at Ruskin Moscou Faltischek PC in Uniondale, goes a step further and suggests having a workplace policy against all forms of unlawful harassment, with the protected categories including race, religion, age and gender.
It’s important for the policy to explain what is prohibited and give some examples, she advises. And there should also be a clear complaint procedure on who workers should report to — perhaps more than one person in case the person who is supposed to get the complaints is the alleged harasser.
Front and center should be a clear statement that the employer does not tolerate, and prohibits, any form of bias or harassment in the workplace, adds Gegwich. Along with that, the policy should say the company will investigate and take remedial action when necessary.
However, having a policy isn’t enough, says Debbie Dougherty, professor of organizational communication at the University of Missouri College of Arts and Science.
“You need to make sure you have training that links your policy to your organizational culture,” says Dougherty, who recently co-authored research that found employee interpretation of sexual harassment policies may render the policy ineffective.
Organizations need to discuss their policies in a clear, concise manner to ensure each employee has the same understanding of what is meant by sexual harassment, she says.
For the organization Dougherty studied, which she says was a very masculine environment, employees feared the anti-sexual harassment policy because it removed the primary way they showed camaraderie (ie. through sexual banter).
Employers need to identify how sexual harassment may function within their organization and find ways to shift that function, she says. This might mean, for example, developing a more mature way of fostering camaraderie.
Training helps, and owners/managers need to make conscious decisions not to engage in sexual banter or flirting.
“Doing so creates a culture where sexual harassment is unlikely to live,” says Dougherty.
Number of charges alleging sexual harassment filed with the EEOC in fiscal 2015, down slightly from 6,862 in fiscal 2014.
Source: Equal Employment Opportunity Commission