Dear HR,
We just received our first possible sexual harassment complaint. One of our female dockworkers was loading some inventory when a male employee came up and offered to help. She declined the help, instead suggesting another co-worker (who is male) was struggling with his load and could use some help. The “helpful” employee grabbed the back of her neck, pulled her towards himself, and made direct eye contact with her while still smiling directly at her. Not only did this physical contact make her extremely uncomfortable, she felt it was uncalled for and came out of the blue, totally surprising her—she felt there was no reason to touch her. The other male coworker who was “struggling” actually watched the entire encounter; he then witnessed the other male employee looking the female worker “up and down” while making inappropriate gestures towards her while her back was turned. The female employee reported this incident to the crew leader, who in turn, reported it to me. We did interview both the female employee and the witness who confirmed the story. We have not yet confronted the offending employee. I don’t want this to escalate into a lawsuit! What should I do next?
HR Answer:
Make no mistake; this is an official sexual harassment complaint! The Federal Equal Employment Opportunity Commission (EEOC), Oregon’s Bureau of Labor and Industries [BOLI] and California labor laws define sexual harassment as unwelcome sexual advances, requests for sexual favors, or conduct of a sexual nature (verbal, physical, or visual), that is directed toward an individual because of gender. It can also include conduct that is not sexual in nature but is gender-related. Sexual harassment also includes the harassment of the same or of the opposite sex. Sexual harassment can take many forms, including repeated sexual flirtations, advances or propositions, continued or repeated language of a sexual nature, graphic or degrading comments about an individual or his or her appearance, the display of sexually suggestive objects or pictures, or any unwelcome or abusive physical contact of a sexual nature.
So far, you have started the first two steps of the investigation by – interviewing the victim and the witness and documenting the incident by taking detailed statements. You must also interview the alleged harasser. Keep in mind, some investigations may warrant multiple interviews with all parties involved. All steps of the investigation must be thoroughly documented.
Review your handbook to make sure that you have a clear “Harassment-Free Workplace Policy” in place, including how your company approaches disciplining an employee in violation of the policy and what procedures you have in place to prevent future incidents. The policy should define sexual harassment, and clearly state that it will not be tolerated. Employers should allow verbal or written complaints and should provide a complaint procedure that bypasses the immediate supervisor if they are the alleged harasser.
Once it is determined the allegations are supported by the investigation, an employer must take “immediate and appropriate corrective action”- which means doing whatever is necessary to put a stop to it and preventing future incidents. Depending on the severity of the policy violation, appropriate corrective action could include any of the following: verbal or written warning; counseling; suspension; sensitivity training or education on harassment laws and appropriate workplace conduct; reassignment of workers to different locations or shifts; or dismissal of the harasser. Your policies and actions MUST be very clear and show your staff that your company has a “zero tolerance” for any type of harassment.
After the investigation is concluded, our next recommendation, which is no less critical to reducing your company’s legal liability, is to require all your staff [management, supervisors, crew leaders & workers] to attend a class or staff meeting on your harassment-free & bullying-free workplace policies. This meeting is to review policies and complaint procedures so that all employees understand what prohibited conduct is and how to report it. These trainings show employees that you have a pro-active program in place for the prevention of future incidents and can be a factor in your favor should you have to go to court.
Starting in January 1, 2021, California employers, having five or more employees MUST provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of training and education all nonsupervisory employees This training must be provided once every two years.
Don’t be scared…just bring in the experts!
By taking immediate action, you are showing that your company is in line with current labor laws concerning harassment, which can offer some protection if an employee decides to sue you. If you are hesitant to take these steps or feel you need more assistance in dealing with this matter, call Cardinal! Our HR Specialists have extensive experience in HR best practices compliance. We offer a wide array of HR services including employee conflict resolution, discipline implementation, performance management and terminations, as well as HR policy development and implementation for any size company.