A simple joke, a late night text, a post on a co-worker’s Facebook page: Defining what “crosses the line” with a policy on sexual harassment

Now that we’ve covered some employee handbook basics, including how to write and implement your policy manual, let’s get into the specifics: the considerations for writing those ever so critical policies. We’ll start with one of the most important policies in your employee handbook: a policy prohibiting sexual harassment.

Before the age of technology, sexual and other unlawful harassment in the workplace was a lot easier to identify: a quid-pro-quo proposition; an unwelcome lingering hug; sexually suggestive comments following a weekly staff meeting; a loud, obscene joke in the break room.

But times have changed, and so has the outlet for harassment. In today’s culture of ever-present communication technology, the opportunity for potentially harassing actions is there 24/7 at the click of a button. And even though many actions may take place outside of normal working hours, that doesn’t mean the employer is no longer responsible for addressing the situation.

Consider this:

• A male employee sends a text message to a female employee asking if she would like to have dinner with him.
• A female employee sends out a vulgar email; her co-workers laugh and no one says they find it offensive.
• A male employee attending an out-of-state conference makes a middle-of-the-night phone call to the hotel room of a female co-worker also attending the conference, asking if they can meet for a drink.
• A female employee leaves a message on her coworker’s Facebook wall about how nice she looked today, and includes a “wink” at the end of the note.

Would any of these behaviors constitute sexual harassment? A clear policy defining sexual harassment will help to answer these, and other related questions, as well as set the foundation for how to respond to potential harassment. It’s important to remember that even though the means by which harassment occurs may now be different, the process for handling the situation remains the same.

Preventing sexual harassment is best achieved by establishing a zero-tolerance policy that includes the following points:

1. Prohibit sexual harassment. The foundation of any sexual harassment policy should be prevention. Clearly indicate that actions, words, jokes, comments, or any other conduct related to one’s sex, race, ethnicity, age, religion, or any other legally protected characteristic will not be tolerated.As obvious as it may be, clear language prohibiting sexual harassment is important for demonstrating the severity of the issue and your company’s commitment to preventing inappropriate behavior.

2. Define sexual harassment. Some employees may think their jokes are harmless or that their actions don’t offend co-workers, but in reality their behavior is quite offensive. To combat ignorance and ensure all employees understand what constitutes sexual harassment, it’s important to clearly define it. So, what is it exactly? Sexual harassment involves: basing an employment decision upon an employee’s submission to unwelcome sexual advances; or creating an intimidating, hostile or offensive working environment through physical actions or by using vulgar, joking or demeaning language. It’s also important to note that conduct doesn’t need to occur between a male and a female for it to be considered sexual harassment; sexual harassment can occur between individuals of the same sex as well.
   

3. Provide examples. It’s important to be specific when defining what constitutes sexual harassment and to use examples whenever possible. Examples may include sending sexually explicit emails, telling offensive jokes, sending unwanted text messages, posting sexually explicit pictures, and making unwanted sexual advances. Be sure to indicate that the examples provided are only intended to demonstrate the types of actions that are prohibited and is not an exhaustive list.

4. Set standards for after-hours conduct. It’s also important to explicitly state that your policy not only applies to employee conduct during normal business hours, but it applies whenever employees are in contact with one another, such as at company parties, off-site conferences, or an impromptu happy hour get together. It also applies when an employee makes an unwanted phone call or sends a text message, email, or other communication on social networking sites like Facebook to a co-worker, whether during business hours or not.

5. Define management’s responsibility. Your policy should inform managers that they have a responsibility to promptly alert the human resource department, or other appropriate party, immediately upon becoming aware of potentially harassing behavior. Protocol for handling harassment claims should be incorporated into your company’s sexual harassment training.
   

6. Describe your complaint procedure. Your policy should indicate the individual or department to whom employees should report harassing behavior. This is usually their supervisor or the human resources department. However, depending on the identity of the alleged harasser, the employee may not feel comfortable going to their direct supervisor to report a claim. As such, it’s important to note alternatives for reporting harassment, such as going to other department supervisors in order to file a compliant.

7. Uphold confidentiality. Disclosure of information about complaints should be limited to those with a legitimate involvement and a “need to know”. Your policy should insist that parties to complaints and investigations refrain from discussing the matter with others and that information about complaints will be held in confidence to every extent possible.

8. Describe the investigation process. Your policy should clearly specify that any and all complaints will be investigated and that if the company has reason to believe harassment is occurring, it is committed to investigating the situation, even if no formal complaint is filed. State that all employees are expected to cooperate with an investigation and that giving false information during the course of an investigation is grounds for disciplinary action, up to an including termination of employment.

9. Include an anti-retaliation clause. Employees should know that they are protected from retaliation if they file a complaint or participate in an investigation claim. Clearly state that no employee will be discriminated against, or discharged, for bringing about a complaint of sexual harassment or for assisting in an investigation.

10. Follow your policy consistently. Having a policy in place is important for communicating how the company responds to harassment claims and for describing the company’s position on the issue. However, failing to follow the policy, including not investigating claims or making it difficult for employees to report violations, can leave you susceptible to legal claims. To limit liability you must follow your policy consistently and demonstrate that you exercised reasonable care to prevent and correct harassing behavior.

Although it may be impossible to eliminate sexual harassment, employers can take proactive steps to minimize harassing behavior by adopting and promoting a zero tolerance policy. To be effective, the policy should not only prohibit sexual harassment, but should also communicate formal complaint and investigation procedures.