What is sexual harassment? It’s a question that seems to have an elusive answer. In reality, it’s not that the answer is elusive as it is complex.
Despite the efforts of both international and national legal authorities, there is no single definition of what constitutes sexual harassment. International law defines it broadly as a form of violence against men or women and discriminatory treatment, while U.S. laws tend to focus on illegal conduct.
Sexual harassment in the workplace occurs when there are unwelcome sexual advances and/or threats of reprisals for the rejection of sexual advances made by a person in a position to grant or deny a benefit to an employee. The harassment can be verbal, physical or visual. It may be conduct or comments that happen over time or it may be one incident which is so bad that it constitutes harassment.
So where is the “workplace?” It can be within the four walls of the establishment, an off-site meeting, a gathering for business or any other event or place related to employment, even if outside of normal working hours. It can also be, at times, on social media where the relationship between the parties arises from work.
The obligation to provide a workplace free of harassment exists under human rights and occupational health and safety legislation. These obligations apply to all employers to prevent and protect employees from discrimination and harassment, including sexual harassment. When allegations of harassment arise, an employer is under an obligation to investigate these allegations to determine if they are founded.
To promote the concept of a workplace being harassment free, employers should consider the following:
- Policy Review. Review and update policies on workplace violence and harassment. Make sure that the definition of workplace sexual harassment is specifically addressed.
- Workplace Diversity Policy. Consider creating a diversity and inclusion policy which recognizes the necessary and growing legal requirements related to accommodation, harassment and sexual harassment, but also meets the growing social expectation among employees (and particularly Millennials) that employers eliminate barriers that impede full inclusivity in the workplace.
- Complaint Procedure. The workplace harassment policy should set out a clear and defined process for making a complaint. Employees must have the ability to report an allegation of workplace harassment to someone other than their supervisor or manager in the event the supervisor/manager might be involved in the complaint.
- Be Ready. Employers should have appointed members of HR/legal counsel (or if there is no in-house legal counsel, external counsel) who are at the ready to deal with complaints of harassment. This should include identified contact names and a protocol concerning internal communications, including what might be treated as privileged. Being organized removes delays in starting the process, which is critical where there are issues of harassment.
- Assessment. Prior to the investigation, conduct a contextual review of the workplace and the individuals involved. Are there any specific factors about the respondent (alleged harasser) or complainant that need to be taken into consideration before decisions are made as to what will happen during the course of an investigation? What interim steps will be taken to deal with the complaint, particularly where the alleged harasser and the complainant remain at work in the same environment? Simply sending the alleged harasser home without assessing the necessity of that step or the potential impact on reputation may end up in future liability if no harassment is found to exist.
- Investigation. Set out a process and procedure for the investigation of complaints. The legal requirement is that the investigation be done in a manner “appropriate in the circumstances.” Whether or not that involves an internal investigation or an independent third party depends on the circumstances and should be discussed with HR or legal counsel.
Dealing with the issue of harassment isn’t just optics. It’s about maintaining a workplace where employees are (and feel) safe from any threat of harassment, including sexual harassment. The benefit is a more productive and efficient workplace, resulting in a better bottom line, excellent employee retention and a strong reputation. Who can argue with that?
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