Harassment in the Workplace: How to Keep Your Policies Up-To-Date

Date: April 24, 2018

Last year, a series of high profile sexual assault allegations led to the firing or resigning of many prominent figures across the country. From television and film, to music, sports, finance, and even government, the “#MeToo” movement spread across industries as people stepped forward to share stories of alleged misconduct and sexual harassment.

As a result, governments have introduced new labor and employment legislation, and businesses of all sizes have taken the initiative to review their policies and procedures on bullying, harassment, and discrimination.

Whether it’s offering new training, updating policies, or even restricting the number of drinks employees can have at parties, businesses are taking more steps to ensure they prevent harassment, have the right procedures in place if it occurs, and protect themselves from liability.

Read on for an overview of the new landscape and find tips on how your small business can work to prevent harassment in the workplace and ensure your policies are up to date.

A New Era

As a small business owner, you’ve probably been through a course, trained your staff, and kept up with state and federal requirements about preventing and addressing discrimination and harassment. But with a social shift that intensified efforts to report harassment and discrimination—plus more digital communication than ever before—more allegations have emerged.

Several laws enforced by the U.S. Equal Employment Opportunity Commission (EEOC) prohibit workplace discrimination based on race, color, religion, creed, sex (including pregnancy, sexual orientation, or gender identity), national origin, age, disability, marital status, veteran status, genetic information, and any other status protected by applicable law.

But after 100+ women came forward with accusations against a famous film producer, and the #MeToo movement spread across the country and social media, a new landscape has emerged for victims of sexual assault and harassment in the workplace.

It’s not just a case of more people stepping forward and speaking up about alleged workplace harassment than any other time in history. Governments are also introducing new legislation to ensure employees have safe working environments, and employers need to keep up to date on these changes.

Related: NFIB’s Guide to the Employee Handbook

Changes at the State Level

Human resource managers are reevaluating workplace policies both in reaction to the #MeToo movement and in response to legislative changes coming at the state level. Several states have enacted or plan to enact new legislation around bullying, discrimination, and sexual harassment.

For example, in Maine, Legislative Document 1477 mandated that as of November 1, 2017, employers must add new compliance measures and provide a sexual harassment training program. This legislation also added costly penalties for employers who haven’t met the posting, notification, education and training requirements, and mandates that the content of the training be developed and updated annually by the Maine Human Rights Commission.

In California as of January 1, 2018, Senate Bill 396 requires employers with five or more employees to post notices regarding transgender rights, and requires employers with 50+ employees to offer training about harassment based on gender identity, gender expression, and sexual orientation.

As legislation evolves, and new rules come into place, small businesses need to be aware of and abide by state and/or local laws, which usually provide greater protection than the federal discrimination laws.

Related: Harassment: It’s Not Just About Sex

The Cost of Legal Issues

Legal action surrounding harassment and discrimination can be devastating for a small business—both financially and in terms of employee morale. Policies should be in place not only to ensure proper behavior in the workplace but also to make reporting of harassment to supervisors as fast and easy as possible.

In 2012, the EEOC obtained more than $365 million in benefits through mediation, settlements, and conciliations for victims of discrimination in the workplace. In 2016, this number was more than $482 million.

Most employers with at least 15 employees are covered by EEOC laws, which apply to all types of work situations including hiring, firing, promotions, harassment, training, wages, and benefits. 

Whenever a discrimination or sexual harassment accusation arises, a clearly documented paper trail should also exist showing how the issue was handled by you, the small business owner, from the moment the accusation was made to any conclusion that was reached.

Related: EEOC Small Business Resource Center

How to Stay Up to Date

While legislation will evolve, the best way to stay up to date is by being proactive, communicating clearly with employees, and documenting it. If you’re looking for a state-by-state guide to workplace poster requirements, check out NFIB’s Poster Resource.

As a small business owner, you can provide a strong defense to harassment allegations if you took reasonable care to prevent it from occurring, took quick and appropriate action, and if the employee failed to follow your clear complaint procedures.

Maximize your preventative efforts—and minimize the risk of being liable—with the following tips:

1. Implement a written non-harassment/non-discrimination policy (an important section of your Employee Handbook), and train all employees about what constitutes unlawful harassment. While having an employee sign off on having read and understood policies in your handbook is great, instituting mandatory training could help educate them even more.

2. Develop and share procedures your employees can take to make complaints about harassment, and make sure they understand them (an open door policy—where employees are encouraged to come forward, speak up, and have nothing to fear—is a great feature to include and emphasize).

3. Develop mechanisms for investigating incidents of alleged harassment quickly, thoroughly, and fairly.

4. Give all supervisors and managers anti-harassment training at regular intervals, and regularly review words and actions (in person and in digital communications) that can make a workplace intimidating or border on harassment/discrimination.

5. Review your policies and procedures with an attorney licensed in your state.

Related: How to Protect Yourself from Discrimination Lawsuits

Please note: This article does not provide legal advice. Employers are advised to retain counsel from a trusted attorney with experience in employment law, and all employee handbooks, anti-harassment, and anti-discrimination policies should be reviewed by an attorney in your state to ensure compliance with federal and state laws and regulations.

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