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SEXUAL HARASSMENT

5 blind spots in sexual harassment policies and how to fix them

Recent months have witnessed the morphing of workplace sexual harassment prevention from legal requirement to moral imperative. And while the current fervor is a bit unnerving for employers, to the extent it shatters complacency, it’s a positive and even necessary development. Sexual harassment has evolved dramatically in the past two decades—in terms of not just conduct but our understanding of it. As a result, the traditional sexual harassment policy, of circa 2000, has become out of date and badly in need of revision. So reviewing your practice’s current sexual harassment policy is not only a justifiable use of time but an imperative. Here are five common blind spots to look for in your review.

1. Banning sexual harassment “in the workplace”

Blind spot: Typical policies ban sexual harassment “in the workplace.” The problem is that sexual harassment occurs not just within the four corners of the physical workplace but also offsite—in vehicles, during business trips and even at home. Moreover, the employer’s duty to prevent sexual harassment may follow employees wherever they go in the course of their job duties, especially when they are in the company of co-workers. Examples:

  • California court refuses to dismiss sexual harassment claim of employee/actor who was allegedly drugged and gang raped at home of co-worker/casting director;
  • Male salesman’s inappropriate sexual remarks to female co-worker at bar was sexual harassment even though it occurred away from work site;
  • Failure to take action in response to employee’s complaints about co-worker’s harassing phone calls makes employer liable for creating hostile work environment even though calls were made from (and to) home after work hours.

How to fix it: Ban sexual harassment not just “in the workplace” or “the practice” but all work-related settings, including offsite activities such as:

  • Client and customer visits and service calls;
  • Business travel;
  • Conferences, training sessions and seminars;
  • Company or client-sponsored social functions;
  • Any other offsite work assignments.

2. Banning sexual harassment “by co-workers, supervisors, and managers”

Blind spot: As with setting, sexual harassment is personnel-agnostic. Employees can suffer it at the hands of not just individuals who work for the same organization but third parties like customers, clients, and even outside service personnel.

Example: During a service visit, a photocopy technician smacks an employee on the butt with a rolled up newspaper as she bends over to pick up a fallen ink cartridge. The victim’s employer is found liable for sexual harassment even though the technician is an employee of the service company and not the organization.

How to fix it: Your commitment to protect practice employees from sexual harassment should extend to harassment from third parties that employees may encounter in the course of their job at least to the extent you have a reasonable degree of control over those parties, e.g., customers, clients, vendors, and contract personnel. While it may be admirable in principle, seeking to extend this commitment to all third parties is neither reasonable nor realistic.

3. Omission of cyber harassment and revenge porn

Blind spot: Old-school sexual harassment policies don’t deal with what is rapidly becoming the face of sexual harassment in the 21st century: cyber bullying, and revenge porn. The latter refers to vindictive and nonconsensual online posting of nude or sexually explicit photos, videos, and other depictions of ex-lovers in an attempt to embarrass, humiliate, and ruin lives. And it frequently happens in the workplace. Although the law is still evolving, the early cases indicate that it’s only a matter of time before the employer’s sexual harassment duties are extended to cyber bullying and revenge porn.

How to fix it: Make sure your policy defines sexual harassment to include cyber bullying and stalking, non-consensual taking or posting of sexual activity, and other forms of sexual abuse against co-workers via social media and other digital fora.

4. Omission of other forms of sexual misconduct

Blind spot: While sexual harassment is the most common, it’s not the only form of workplace sexual misconduct. And while using the term “sexual harassment” to refer to the whole enchilada may be clear enough for everyday parlance, it won’t work in the context of an HR policy.

How to fix it: Ban not just “sexual harassment” but all forms of sexual misconduct that employees may suffer in the course of their work, including:

  • Non-consensual sexual contact or attempts to commit it (just be sure to include a clear definition of “consent”);
  • Dating violence or abuse, i.e., use of fear, degradation, humiliation, and/or abuse against a dating partner to gain power and control in the relationship;
  • Domestic violence;
  • Stalking and cyber stalking;
  • Sexually-based communication, i.e., in-person, phone, social media, electronic messages, and other communications of a sexual nature that are unwelcome to the employee recipient;
  • Invasion of an employee’s sexual privacy;
  • Exceeding the limits of consent, e.g., Bob lets a friend hide in the closet so he can watch Bob have consensual sex with his co-worker;
  • Knowingly transmitting a sexual infection or disease to another person;
  • Non-consensual sexual exposure.

5. Lack of accountability for bad faith accusations

Blind spot: While most sexual harassment complaints are made in good faith, there’s always the risk of employees’ of abusing the system by making accusations they know to be baseless. Most sexual harassment policies aren’t equipped to deal with these abuses.

  • Pattern 1: The policy doesn’t hold employees accountable for such abuses; or
  • Pattern 2: The policy holds employees accountable for “false” accusations.

The first policy doesn’t go far enough; and the second policy goes too far. Punishing employees for making “false” sexual harassment complaints exposes you to liability risks for retaliation if the employee made the accusation in good faith and sincerely believed he/she was harassed.

How to fix it: Reserve the right to punish not false but bad faith complaints. Specify that you won’t consider a complaint to be in bad faith merely because the evidence doesn’t ultimately support the accusation and that bad faith requires a finding that the complaining employee acted maliciously either knowing that the accusation was false or recklessly without regard to whether the accusation was true.

Conclusion

The old-school sexual harassment policy has become obsolete. Protect your practice by revising your policy to comport with modern times, technology, wisdom, and understanding about how sexual harassment occurs.


Editor’s picks:

Why do some get away with sexual harassment?


8 Traps to Avoid When Investigating a Sexual Harassment Complaint


Five dangers in dealing with harassment complaints


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