Sexually charged comments and behaviors can destroy workplace morale and spark costly lawsuits. As victims of sexual harassment become more willing to speak out, organizations of all sizes are taking steps to address the problem. Practice owners can protect their businesses and employees by instituting policies and procedures that promote a respectful work environment.
The Costs of Harassment
People often think of sexual harassment in terms of quid pro quo: a supervisor offers someone a job or a raise in return for a sexual act. But in today’s workplaces most sexual harassment claims stem from hostile work environments. For example, yesterday your employee Jake complimented Sarah on her “sexy” new hairdo. Today he patted Marianne on the shoulder and thanked her for wearing a “revealing” new outfit. And he’s been pressing Deborah, the regional sales rep, for a date to “get better acquainted.”
Jake may be a top-performing employee, and it may appear that the women are willing to play along with his chatter. Still, his comments are creating a hostile work environment that can affect morale and lead to a costly sexual harassment lawsuit.
“Most complaints in recent years are not for quid pro quo harassment but for claims stemming from inappropriate touching, comments and jokes,” says Joseph P. Harkins, an attorney with Littler, a San Francisco and Washington, DC-based employment law practice representing management. “Ignoring this type of sexual harassment can lead to costly financial settlements, low morale and negative publicity for a business.”
The financial cost of sexual harassment lawsuits can be substantial: While federal law caps compensatory damages at $300,000, most state laws have no such ceiling. “It is popular for plaintiffs to sue under state law for the unlimited damages,” says Harkins. And the financial costs don’t end there. “Most statutes include fee shifting provisions, so a prevailing employee’s attorney fees are paid by the employer. It’s not uncommon for attorneys’ fees to come to a quarter of a million dollars on each side,” he says.
Moreover, transgressors can incur personal responsibility. “Some state laws extend liability for general sexual harassment to the individual,” says Bob Gregg, co-chair of the employment practice law group at Boardman and Clark in Madison, Wisconsin. This is more likely in cases where the harassment involves touching and groping, which can be deemed assault and battery.
“Individuals can also be held liable for defamation if they spread false information or make mocking comments about a person’s sexuality,” he says. Finally, individuals can be held personally liable for sexual harassment against third parties such as customers, suppliers or public visitors to the workplace.
Beyond financial loss from lawsuits and settlements, harassment can lead to a costly loss in staff morale. “Sexual harassment is a form of bullying,” explains Valda Ford, CEO of Omaha, Nebraska-based Center for Human Diversity. “Instead of being productive, a harassed individual becomes constantly afraid of encountering another comment, another inappropriate touch, another creeping feeling of ‘here we go again.’”
Protecting Your Practice
How can you protect your employees and your practice?
Create good policies. “Create written policies that prohibit sexual harassment and promote a respectful workplace,” says Gregg. “And don’t just bury them somewhere in your employment handbook. Communicate them in employee orientations and continually emphasize them in staff meetings.”
Your attorney or human resources (HR) provider can help you create an anti-harassment policy and training schedule. Sample policies are available online through the International Labour Organization (ilo.org) and the U.S. Equal Employment Opportunity Commission (eeoc.gov).
Establish a reporting procedure. “Designate properly trained individuals to whom complaints can be made,” says James J. McDonald, Jr., managing partner at Fisher & Phillips in Irvine, California. He warns against requiring complainants to report incidents to supervisors, who may not have the requisite training or may themselves be offending parties. Instead, assign properly trained individuals in the human resources department. If you do not have an HR department, practices can contract with an independent HR service firm. “Some human resources consultants provide fractional services for smaller clients,” says McDonald. “They might provide an individual to work on site for two days a week and/or offer availability through a telephone hotline.”
Respond quickly to complaints. Take prompt action when an individual reports harassment. “People are more prone to utilize internal resources to resolve problems if their employer has a record of prompt and effective action when harassment is reported,” says McDonald. “On the other hand, if an employer has not taken sexual harassment reports seriously, people are more likely to use outside attorneys to sue when harassment occurs.”
The first step is to investigate each complaint thoroughly. Interview any third-party witnesses and find out what corrective action the complainant deems appropriate. “While you don’t want the complainant to decide what action is taken, you do want to get that person’s input on what remedial measure they deem appropriate,” says Harkins.
Complainants may have any number of reactions to what they have experienced. “Sometimes they say the harassment was not severe, but they reported it because they wanted the organization to know about it,” says Harkins. “Sometimes they just want to have a discussion or have the person counseled. In some cases, they ask that a person be terminated.”
If the remedial action you recommend does not satisfy the complainant, Harkins suggests involving that person in reviewing and/or implementing new training on harassment in the workplace. This shows that you are willing to take action and that your goal is to improve the work-place environment.
Be proactive. Communicate your commitment to a respectful work environment by actively monitoring your workplace for violations. “Don’t just wait for complaints to be filed,” says Gregg. “Be proactive, and make sure all supervisors realize they have a duty to take action when a questionable event occurs.”
Such monitoring should include addressing behavior that might not be illegal but has the potential to escalate. “When a person is nasty, surly and engaged in behavior that is disruptive and abusive—and this includes making crude comments or reinforcing gender stereotypes—speak up and say you expect the individual to be civil,” says Gregg.
Beware fraternization. Supervisors need to understand the risks involved in blurring the line between business and personal relationships. “Managers and supervisors can have friendly relationships with subordinates, but they should not be friends with subordinates,” says McDonald. Failure to maintain professional distance, he says, can lead to situations that may not appear initially as harassment but could result in such charges down the road.
For example, if a supervisor and subordinate become close at work, one or the other may start taking liberties, such as texting after business hours about personal problems, asking for personal or financial advice, or they may start attending social outings together. “These kinds of liberties can create situations that create confusion for both parties,” says McDonald.
This also raises the question of employee relationships. Many people meet their spouses at work. But when sparks fly between a supervisor and subordinate, it can raise questions of consent, especially if the relationship ends poorly. Therefore, it is beneficial to create a policy on workplace dating. “Some employers state that no one may date any co-worker or any supervised employee. Others allow consensual relations, but require the parties to notify management, which can then assess any conflicts of interest and transfer employees to separate departments or shifts, if needed,” says Gregg.
While every business owner wants to mitigate the risk of financial penalties resulting from harassment claims, there is more at stake than simply avoiding costly lawsuits. “People are often concerned about the legal liabilities for sexual harassment, and that aspect of the problem has certainly been making the headlines recently,” says Gregg. “But legal liability should not be what drives the topic.”
More importantly, employees are more productive—and less likely to investigate other job opportunities—when they are working in a positive and respectful environment free of unwanted sexual advances and derogatory comments. “Create a respectful workplace not because the law makes you do it, but because it’s to the benefit of your practice, your patients and your employees,” says Gregg.
Phillip M. Perry is a freelance writer based in New York City.
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