Employers can be held liable for any sexual harassment that occurs in
workplace. However, if they take reasonable care to prevent and correct harassment, they will not be liable. The following article looks at
elements of reasonable care that will greatly reduce
risk of sexual harassment liability. Written Policy. The policy should explain what sexual harassment is. It should give a variety of examples that make it clear that sexual harassment can take many different forms: unwanted physical contact; efforts to trade sex for employment-related benefits; lewd language or offensive jokes, pictures, drawings, or graffiti; or any combination. It should explain that
harasser’s intent does not determine whether
conduct is sexual harassment. Whether behavior is sexual harassment depends on how
victim experiences it, not whether
perpetrator intended to harass. It should state that male and female workers can be victims of sexual harassment by harassers of either gender.
The policy should be written in a way that will communicate well and be understood by
average worker. It should avoid legal jargon. It should be translated into languages other than English if there are workers whose command of English is deficient.
Complaint Procedure and Penalties. The policy should tell workers: how to file a complaint, providing model complaint forms; where to file a complaint, identifying several persons on staff designated to receive complaints. It should explain what happens during
investigation and what happens after
investigation, identifying who is responsible for making
final determination of whether sexual harassment occurred; what
possible penalties are, as well as who imposes penalties for sexual harassment and whether
complaining party has
right to know what penalty
employer has decided to impose; and how to appeal
employer’s findings.
Retaliation. The policy should strongly prohibit retaliation, giving examples of what retaliation is. It should state that retaliation against complaining parties or witnesses will be taken as seriously as harassment itself.
Fairness and Safeguards. The policy should protect
rights of all persons involved. It should assure confidentiality to
extent possible.
Publicizing
Policy. It’s no good to have a written policy if employees can later claim they never saw it. Each new hire should be given a copy of
policy and sign a receipt stating he or she has read and understands it. But too many employers leave it at that. If you want employees to remember
policy and to understand that you are serious about it, there must be ongoing exposure. Make available a brochure or pamphlet that summarizes
policy.