Sexual Harrassment Policy

ARE EMPLOYERS REQUIRED TO HAVE A SEXUAL HARASSMENT POLICY?

WHAT SHOULD YOUR SEXUAL HARASSMENT POLICY SAY?

         The federal law prohibiting employment discrimination, Title VII of the Civil Rights Act of 1964, and the New York statute prohibiting employment discrimination, the New York Human Rights Law, both prohibit discrimination based on sex. Title VII applies to employers of 15 employees or more; the New York Human Rights Law applies to employers of 4 or more. Employers should be aware that the New York Human Rights Law now prohibits discrimination on the basis of sexual orientation.

         Employment discrimination on the basis of sex has been interpreted by the courts to include harassment due to a person's sex as well as sexual advances and attitudes in the workplace that create a hostile work environment. The early focus of sexual harassment cases was the presence of "sexual" material in the workplace-dirty jokes, pin-ups, requests for sexual favors, lewd and suggestive gestures or topics of conversation. The current trend is a focus on whether an individual is being treated differently due to his or her sex, even if there are no sexual overtones to the conflict.

         The bad news for employers is that court decisions have found employers strictly or automatically liable for sexual harassment when a supervisor uses his or her position, such as refusing to hire, firing, reassigning, or making a decision that causes a significant change in benefits, because of an employee's objection to sexually harassing conduct.

         The good news is that courts have also found that if no tangible employment action has been taken against the employee, whether the alleged harasser was a supervisor or a co-worker, the employer can assert a defense that it had exercised reasonable care to prevent and correct promptly any sexually harassing behavior.

         Employers want to have a sexual harassment policy in place and a procedure to investigate claims to learn about possible sexual harassment claims as quickly as possible to minimize or eliminate any liability for sexual harassment.

Key elements of a sexual harassment policy are:

  • General definition of sexual harassment designed to bring problems forward early;
  • At least one person outside the direct supervisory chain listed for reporting complaints;
  • No retaliation for reporting complaints;
  • Discipline for person found to have violated the policy;
  • Confidentiality provided to the extent practicable.

Employers should also consider the following in developing a sexual harassment policy:

  • Placement of the policy in the employee handbook.
  • How are new employees advised of the policy?
  • Are employees required to sign a receipt for employee handbook containing the policy?
  • Do employees, including supervisors, receive sexual harassment or diversity training?
  • Is training provided to the investigators of the complaints?

Employers who already have a sexual harassment policy in place should periodically consider the following:

  • Does the policy work? Is it effective?: For instance, have employees reported instances of sexual harassment? Have those instance been investigated and resolved quickly and effectively for all parties? Is the workplace free of materials that might be offensive? What is the workplace culture concerning language and general conversation?
  • In-service education: Employers might consider providing training on the sexual harassment policy in the context of diversity training. The training on the policy would include what the policy means, e.g., definitions of sexual harassment, what types of complaints can be reported (actions by third parties as well as other company employees and supervisors) how complaints are investigated, and how the results of the investigation are handled, confidential, no retaliation. It is imperative that supervisors understand their responsibilities under the policy.

         We would be happy to provide you with whatever assistance you require in the review, development or training with respect to your sexual harassment policy. Please feel free to contact Laurie Johnston at 607-273-4200 or lmj@millermayer.com.