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Can a Great Human Resources Department End Sexual Harassment in Your Company?

Unfortunately, no. The answer to stopping sexual harassment problems in a company is more complicated and difficult than just hiring an extremely dedicated and motivated Human Resources Department. Every person in the Company must be fully trained to understand the total unacceptability of sexual harassment (and, at the most basic level, fully understand what sexual harassment is-and how to complain when observing and/or experiencing it).

The explosive flood of sexual harassment accusations hitting the news in recent months is often accompanied by angry accusatory comments such as: Why didn't the Human Resources Department of the Company prevent this from happening?

It's comforting to think that having a great Human Resources Department could head off all problems of sexual misbehavior at work. But, adding to the complexity of sexual harassment incidents in the workplace, there is the reality that what offends one employee may not offend many others.

ROLE OF HUMAN RESOURCES DEPARTMENT: A top notch Human Resources Department cannot actually prevent sexual harassment and sexual misconduct from occurring in the first place. However, a Human Resources Department can work to prevent it by educating the workforce about the Company's sexual harassment policy and the Company's complaint procedures. It can let employees know that sexual harassment will not be tolerated by the Company and that violators will likely lose their jobs or, at the very least, receive serious disciplinary action.

SEXUAL HARASSMENT CASES CAN BE DIFFICULT TO INVESTIGATE: The reality is that sexual harassment cases can be difficult to investigate. Rarely does a complaining employee have conclusive proof which directly shows that an employee sexually harassed them. Many workplace investigations end up with "no corroborating evidence to support the complaint."

QUALITY OF INTERNAL INVESTIGATION IS EXTREMELY IMPORTANT: However, a good workplace sexual harassment investigation can reduce tensions and be a legal defense for the Company in the event of a workplace sexual harassment lawsuit, showing that the Company tried to understand a complicated web of conflicting accounts and deal with it promptly and appropriately. A poor investigation by the Company can make things worse, hurting employee morale and exposing the Company to litigation. The quality of the Company's internal investigation is extremely important.

Doing a half-hearted investigation or what is going to be perceived as a "white wash" is going to be less useful than doing no investigation at all. Often it is wise for a company to seek outside legal help in planning a detailed and thorough workplace investigation into a sexual harassment complaint.

The best investigations aren't just prompt, but incredibly thorough as well. This means employers should interview every witness remotely connected in any way to the alleged sex harassment. Detailed notes should be taken about each interview of each witness, exactly what was said or done, the demeanor of the actors, who was there, the complete context of the interaction, any knowledge of other instances of sexual harassment by the accused, etc.

ZERO TOLERANCE SEXUAL HARASSMENT POLICY: It is essential to develop, implement and enforce a zero tolerance sexual harassment policy that clearly defines lawful and unlawful behavior. Examples should be given. The policy should explain that sexual harassment includes both "quid pro quo" sexual harassment (eg., get romantically involved with me or you don't get promoted), as well as the creation of a "hostile and offensive" work environment whether physically, orally or by written communications, hand gestures, jokes, emails, graffiti, social media conduct, whistles, cyberbullying or other inappropriate behavior.

The Company's sexual harassment policy should further state that not only is sexual harassment unlawful, but the Company also prohibits harassment based on race, color, national origin, gender, age, marital status, religion, disability, sexual orientation, pregnancy, genetic conditions or predispositions, or certain military and veteran status.

In addition, the policy should clearly outline the consequences for violating the policy and the discipline that will be imposed if sexual harassment allegations are proven.

Note: Do not have a warning that complaints of sexual harassment "in bad faith" will be punished. This kind of warning tells employees that they are taking a big risk by reporting sexual harassment in the workplace.

FAILING TO PROVIDE A MULTICHANNEL COMPLAINT PROCEDURE: As part of the sexual harassment policy, the employer should establish a multichannel complaint process which allows an accuser to bring complaints to various members of management and the Human Resources Department and not just one specific individual, as this may be the alleged harasser or his/her good friend. That's also why accusers must have multiple avenues to lodge a sexual harassment complaint, including a telephone or email hotline (and should not be required to bring a written complaint).

FAILING TO PROVIDE ANTI-SEXUAL HARASSMENT TRAINING: Providing both employees and supervisors with anti-sexual harassment training is a huge part of minimizing the risk of sexual harassment in the workplace. Training should be conducted on an annual or semi-annual basis and should provide clear guidelines and concrete examples on lawful and unlawful behavior.

Anti-sexual harassment training should be provided early on in the onboarding process, and should be interactive and include easily understood hypothetical situations.

Once an employee goes to a supervisor with a complaint of discrimination or sexual harassment, the supervisor has a heavy legal burden of responsibility to make sure that the complaint ends up in the right hands. In some companies, it is the head of Human Resources who needs to be informed. In smaller companies, where there is no Human Resources Department, the owner of the Company should be immediately informed.

Supervisors need to know that they must immediately notify the appropriate individuals of any sexual harassment complaint and not start investigating or questioning witnesses on their own. This is because the minute sexual harassment is alleged, the employer is potentially liable.

The supervisor should never, ever, promise to hold a complaint of harassment/ discrimination confidential. If an employee asks for such a pledge of confidentiality, the supervisor should be sure to tell the employee that the supervisor cannot make such a pledge.

Supervisors stand in the shoes of the Company owner. If a supervisor is told about a sexual harassment or discrimination complaint, then, in the eyes of the law, it is as if the owner of the Company had been notified of this situation. The Company owner cannot plead ignorance if one of the supervisors of the Company has awareness or notice of a discrimination or sexual harassment matter.

See Tony Caruso's article about training.

FAILING TO INVESTIGATE: Under Title VII of the Civil Rights Act and similar state and local laws, an employer is required to conduct an internal sexual harassment investigation when it knows or has reason to know that an employee is being subjected to discrimination, sexual harassment or other unlawful conduct in the workplace. The investigation should start the very day the sexual harassment complaint is submitted!

Additionally, the employer should not discount or discredit an individual who does not complain immediately as there may be valid reasons behind this failure to come forward earlier. It is absolutely essential that all complaints are taken seriously and promptly and thoroughly investigated.

Yes! Even employers with just one employee can be sued for sexual harassment under Illinois law. The Illinois Human Rights Act applies to all employers who employ 15 or more people within Illinois for at least 20 weeks during the year. It also applies to all employers who are sued for discriminating on the basis of handicap or for sexual harassment, regardless of the number of people they employ.

For a free copy of my step-by-step article on how to do a sexual harassment investigation, contact Legal Assistant Tammy Nelson at (630) 377-1554 or via email at [email protected].

For assistance with workplace investigations, harassment or discrimination issues of all types, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman's St. Charles, Illinois office: (630) 377-1554 or email her at [email protected].

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