A new employee is receiving training on the company computer system from her manager. He’s sitting close to her, but is it too close? There were a few unnecessary touches on the arm and leg, but what’s a new employee to do? And then throw in sexually-charged text messages, dirty jokes, cornering an employee in a locked room… These can all be common examples of workplace harassment.
Both federal and state law ban several types of illegal discrimination in the workplace, as well as sexual harassment. Sexual harassment occurs when an employee makes unwelcome sexual advances towards another employee.
What is Sexual Harassment?
The line between sexual harassment and innocent conduct is not always clear. In this article, we will focus on physical harassment and sexual advances, but speak with an experienced employment lawyer if you have concerns about such behavior in your place of work.
The Ninth Circuit has given several examples of the kinds of conduct touching that would constitute unlawful sexual harassment, including:
- Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person
- Telling lewd jokes, or sharing sexual anecdotes
Asking sexual questions, such as questions about someone’s sexual history or their sexual orientation
Sometimes, a supervisor goes ‘rogue’ and engages in unlawful discrimination or harassment. Both state and federal law make it clear that an employer may be vicariously liable for the acts of its supervisors. In addition, an employer may also be liable for the inappropriate conduct of non-supervisors if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.
Steps an Employer Can Take to Prevent Sexual Harassment Claims
Here are four steps a small business owner can implement to prevent sexual harassment claims:
1. Have an updated employee handbook and develop a company anti-harassment policy and procedure.
Avoid using boilerplate language in your employee handbook – really think through your policy and process. Who should the employees complain to and what different avenues can the company set up to have them complain? This is key in using a defense recognized in California – the avoidable consequences doctrine. This defense was just reaffirmed by a California appellate court and it could limit the damages the plaintiff could receive if they don’t complain under the employer’s complaint procedure. Make sure your company’s anti-harassment policy identifies a person who handles such claims.
2. Treat all complaints seriously and perform thorough investigations.
Having two people involved in the investigation is a good idea. Preferably one should be male and the other female.
3. Investigate complaints immediately.
Get started right away on the investigation, as delay may indicate that the employer did not take the complaint seriously. Speak to witnesses and obtain statements as soon as practical.
4. Prevent any form of retaliation from occurring.
This is an important and often overlooked step. Even if your investigations concludes that no harassment took place, if the employee is retaliated against by the manager for making a complaint, the employee would still have a retaliation claim.
Sexual harassment claims continue to be a significant problem in the workforce. An updated employee handbook with a detailed anti-harassment policy, sexual harassment training for supervisors, proper employee postings and a company protocol for investigations will go a long ways towards preventing sexual harassment at your business.
To discuss updating your employment policy to include the anti-sexual harassment tips above, contact employment lawyer and RPNA managing partner Drew E. Pomerance today.