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BusinessColumnistsJamie Herzlich

With spotlight on sexual harassment, employers should take heed

It’s not enough to follow the law, experts say. Companies should take a hard look at their culture and implement best practices.

Employers should provide training on what constitutes sexual

Employers should provide training on what constitutes sexual harassment, because one person's perception of it may not be the same as another's, experts say. Photo Credit: Getty Images / iStock

Cases of sexual harassment have been making headlines on an almost daily basis in recent months.

While many of the accounts have involved power players in media, entertainment or politics, they have shined a spotlight on the issue as a whole.

Employers should take heed and review their policies and also provide training on what constitutes sexual harassment, because one person’s perception of it may not be the same as another’s, experts say.

“It can be very gray,” says Wendy Parker, a professor of law at Wake Forest University in Winston-Salem, North Carolina.

Given the current climate, “everyone’s wondering what can I do and what can’t I do,” she says, noting employers should tell employees what they do and don’t find acceptable.

There’s the law, and then there’s what the company can dictate, she says.

For example, some companies say you can’t date your subordinate, which isn’t the law, but their own policy, Parker says.

According to the U.S. Equal Employment Opportunity Commission, “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”

It also has to be pervasive or severe, Parker says.

“The law, when it comes to sexual harassment, is pretty forgiving of people being asked out on dates, people complimenting each other and an occasional touch on the shoulder,” she says.

Also, in order to prove that a victim was sexually harassed, the person has to show he or she thought the behavior was offensive, says Ellen Storch, a partner at Kaufman Dolowich & Voluck in Woodbury.

It has to be offensive from a subjective view (meaning the victim has to have been offended) and from an objective perspective (meaning another reasonable person would also find the conduct offensive), she says.

Sometimes this can be hard to prove in cases such as a text exchange in which the now-victim participated in the banter, she says.

Storch says she reviews the texts to see if there was an opportunity for the victim to express in some way that he or she wasn’t enjoying the comments or exchange.

To establish a case, the plaintiff has to establish that the conduct was unwelcome,” she says.

To protect your business, train employees and managers on what constitutes sexual harassment.

“A lot of people don’t realize where the line’s crossed,” says Christine Malafi, a partner at Ronkonkoma-based Campolo, Middleton & McCormick, who has advised clients on sexual harassment prevention training.

Following the law is great, but employees need to implement best practices. For example, while employees can socialize, a best practice would be to prohibit supervisors from after-hours, one-on-one socializing with subordinates being considered for a promotion, she says.

Another best practice: Don’t permit sexual innuendo during business discussions. And, of course, both the law and best practices require that there’s never a quid pro quo — an employee can never be asked for sexual favors in return for a job benefit, Malafi says.

In an organization, the way people talk habitually lays the framework that allows sexual harassment to exist, says Debbie Dougherty, a professor of organizational communication at the University of Missouri College of Arts and Science.

“I think about it as an organizational culture phenomena,” she says. “It’s woven into the culture.”

Companies have to decipher how people are talking within an organization and what sexual harassment means within that organization and what function it’s serving (i.e. creating camaraderie), and then find ways to achieve that function in an alternative way, she says.

“Every organization at some point faces sexual harassment,” Dougherty says. “The real problem happens when it gets woven into the culture.”

Fast Fact:

Workplace harassment too often goes unreported. Roughly three out of four individuals who experienced harassment never talked to a supervisor, manager or union representative about the harassing conduct.

Source: U.S. Equal Employment Opportunity Commission

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