Creating an environment free of sexual harassment AND any type of harassment based on your race, ethnicity, sexual orientation disability is one of the biggest challenges for better employers. Although incivility and plain old rudeness are not protected by the law, one of the most complicated areas of creating a safe environment is training employees about the dangers of sexual harassment, or other illegal forms of harassment.
Some employers don’t recognize how to educate their workers – including those higher on the management chain – about illegal harassment is how, or to avoid it and report it. It is far more than merely conducting a required training. According to the Occupational Safety and Health Administration, all employers are legally required to post an anti-harassment policy on the premises of their establishment in a place where it is visible to employees. Additionally, they need to have documentation that all employees have undergone the required training that defines what sexual harassment is. All bigger employers have anti-discrimination policies; the question is what does the employee do to enforce it. In a lawsuit under the New York City Human Rights Law, the employer’s burden is to prove the enforcement of the harassment policy. Failure to do either of these things can result in punitive damages or, under OSHA rules, fines exceeding $1 million in severe cases.
While both of those tasks are incredibly important, the Society for Human Resource Management suggests that the most effective training focuses on educating employees on how to be respectful and tolerant of their fellow cohorts. It will empower them to report incidents of harassment if they are being abused or if they are a witness to someone else’s abuse. Workers who are in supervisory positions should receive training about how to respond to complaints in a way that is timely, respectful, legal and professional. When employers think outside the box about how to incorporate training into their efforts to educate about sexual harassment, they may be much more effective in encouraging a workplace that is inclusive, safe and successful.
I’ve been litigating harassment cases since the 1990’s – well before the #MeToo movement. All of those cases settled, but I am currently leading a team of fourteen employees at a major construction company where nooses were openly displayed in the workplace. The case is pending and a mediation – a settlement conference – will take place in January. If the employer wants to avoid exposure, it will settle. I would love to take this case to trial and have a jury say whether nooses in the workplace will be tolerated, and, if not, whether the employer should be punished.