No business is invulnerable where sexual harassment in the workplace is concerned. Does your small business need a sexual harassment complaint procedure?
No business is invulnerable where sexual harassment in the workplace is concerned. Federal, as well as state and local laws prohibit workplace harassment. However, some laws apply to employers who meet certain employee thresholds.
However, even if small employers aren't subject to anti-harassment rules, should they follow suit?
The short answer is yes. Just because your tight-knit business's employee headcount doesn't meet the threshold of anti-discrimination laws like Title VII of the Civil Rights Act (15 employees) or applicable state and local laws, it doesn't mean that you and your business can't be sued — or that harmful and inappropriate behavior can't occur.
"It is still a best practice for a small business owner to have an effective anti-harassment policy in place," advises Kristin LaRosa, senior counsel at ADP. "A company's demonstrated commitment to an organization free from harassment or discrimination is the first step toward eliminating workplace harassment."
Create a Policy
To be effective, your anti-harassment policy should expressly state your zero-tolerance stance toward harassment. Consider whether your policy will extend to non-employees such as third parties, clients, vendors, or contractors. Some state or local anti-harassment rules may even extend to such individuals
"The policy should provide clear examples of both physical and nonphysical prohibited conduct," according to LaRosa. Prohibited physical conduct could be quid-pro-quo threats along the lines of, "If you don't let me X, I'll sabotage your work." Nonphysical harassment creates a hostile work environment, for example telling crude sexual jokes to an unwilling listener or sending an offensive email or text message.
In your policy, clearly state that protections extend to not only sex-based harassment but to any other federal, state or locally recognized characteristic, including race, color, national origin, religion, disability and age. Also include a statement making it clear that if the policy is not followed, action up to and including termination may occur. As LaRosa warns, "Companies should emphasize [that] all complaints will be treated seriously and receive a prompt response and appropriate remedial action."
Lastly, state that no one who raises a complaint or participates in investigations will experience retaliation. Your policy's effectiveness will be severely limited if employees are afraid of using it.
Create a Procedure
Your sexual harassment complaint procedure, which should be included in the policy, starts with a complaint by either a victim of or a witness to harassment. Your complaint, investigation and resolution procedure should allow "employees to immediately report complaints and provide multiple avenues to raise the complaint," advises LaRosa.
The procedure should:
Denote who receives complaints — for example human resources, supervisors, the C-suite or board members
Designate who conducts investigations, whether a well-trained internal investigator (traditionally HR conducts) or an independent outside investigator (especially when the accused is high-level), as long as they're unbiased and unconnected with either party
Determine exactly what happened
Document every step from complaint to investigation to interviews and determination in a fact-centric way
The investigator should have "clear guidelines on how to assess the credibility of the complainant, alleged harasser and any witnesses," notes LaRosa. "Once the investigator makes their recommendations, take any appropriate corrective action and advise the complainant that appropriate action was taken. Continue to follow up with the complainant to ensure that no further harassment has occurred."
Once your policy and procedure are written, implement them with training. It's not simply best practice — in states like Maine, California, Connecticut and New York, it's mandated. Ensure that leaders are trained not only on policy and procedure but also on how to prevent, identify and handle complaints. Have everyone sign off on the policy, indicating that they've read and understood it, and make that acknowledgment part of their files.
"Business owners cannot afford to bury their heads in the sand," warns LaRosa. "They must constantly audit effectiveness of their policies and procedures to ensure all employees, including those in the C-suite and 'star' performers, are held accountable for their conduct." Make modeling expected behavior and monitoring situations part of leaders' jobs.
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