How To Prevent Workplace Harassment: A Guide for Employers

Workplace discrimination and harassment can damage every part of your business. They can result in lawsuits or fines, increased absenteeism and healthcare costs, and reduced employee retention. A toxic company culture reduces employee morale and production, affecting your bottom line.

Small business owners can create a workplace culture that supports all workers and eliminates workplace harassment. This article explains the legal foundations of workplace anti-harassment policies. A local employment law attorney can help you develop anti-discrimination and workplace harassment policies that work for your business and avoid liability.

This guide provides the steps you can take to ensure a safe and healthy work environment. For help in creating a policy or confirming its legality, consider speaking with an employment law attorney.

Step 1: Create and Implement Your Anti-Harassment Policy

Federal law prohibits discrimination based on race, color, religion, sex (including gender identity and sexual orientation), national origin, age (40 or older), disability, or genetic information. Your state or local laws may offer additional protections.

The Equal Employment Opportunity Commission (EEOC) recommends developing anti-discrimination and anti-harassment policies. Get input from your employees and consult with legal professionals to ensure compliance with federal and state laws. Your state may have stricter regulations than federal law.

Incorporate your anti-discrimination and harassment policies into your employee handbook. Include a copy in every new employee‘s hiring packet. Provide it to all existing employees as soon as it’s available.

Your policy should contain:

• An explanation of prohibited conduct, with plain examples: For instance, “sexual harassment, such as catcalling, whistling, physical contact, touching, groping, etc.”
• An anonymous complaint process with accessible methods of reporting: Complaints should not have to follow a “chain of command” if the employee’s supervisor or manager is the harasser
• Assurance that you will protect confidentiality to the greatest extent possible: Acknowledge that pursuing criminal charges may involve other departments or agencies.
• Assurance of protection: Victims and witnesses must be assured that they’ll be protected against retaliation
• Assurance that you will take immediate corrective actions after a thorough investigation: Include examples of the type and nature of the corrective procedure

It’s also essential to train employees on your policies. Conduct sexual harassment prevention training and discrimination training. Make this part of your onboarding process for all new hires. Some states have laws requiring mandatory sexual harassment training. Other states strongly recommend it.

The EEOC doesn’t recommend employers take a zero-tolerance attitude toward inappropriate behavior. In a workplace study on harassment, an EEOC task force found the zero-tolerance concept leads to a “one-size-fits-all” disciplinary approach.  This can lead employees to underreport harassment, particularly when they do not want a colleague or co-worker to lose their job over relatively minor harassing behavior. They simply want the harassment to stop.

In light of this, most businesses shouldn’t start with a zero-tolerance policy. The EEOC advises using a reasonable person standard to evaluate sexual harassment. Start with reminders and escalate disciplinary action as needed.

Remember that employers are legally obligated to follow federal and state anti-discrimination laws. Some states, such as California, have annual training rules to refresh workers on harassment policies. If you’re uncertain, speak to an employment attorney for legal advice about the laws in your state.

Step 2: Conduct Regular and Effective Training

Many employers utilize training programs to teach how to avoid sexual harassment in the workplace. For some, it’s required. Here are some tips for creating such a program:

• Know your state requirements: If you do business in a state with a mandatory training program, review their guidelines. Most private employers in California, Connecticut, Delaware, Illinois, Maine, and New York must have a sexual harassment prevention training program. Ensure your training includes any items demanded by the state.
• Ensure your sexual harassment policy aligns with your company’s values and mission statement: Your policy must be more than “don’t harass women.” Your workers will know if this is just another government compliance module.
• Use a realistic training format: Parking your employees in front of a computer to watch videos on “How To Avoid Workplace Harassment” is an afternoon off for most workers. As awkward and embarrassing as role-playing and interpersonal discussions may be, they help workers understand and use your anti-harassment policies.
• Use realistic examples during your training: Use examples that workers might encounter at your workplace, not the boilerplate examples common to training programs. Everyone knows that pinching someone’s behind is illegal. Your program needs to explain how constantly asking someone out for a romantic lunch or making “dumb blonde” jokes is also harassment.
• Consider bystander training: This system was previously used in colleges and universities and was successfully transferred to the workplace. Bystander training teaches workers intervention techniques for behavior before it becomes full-blown harassment. Research suggests that many people become uncomfortable with comments or jokes long before behavior becomes harassment, but hesitate to speak out. Bystander training teaches ways to step in without sounding judgmental or authoritarian. 
• Make firm disciplinary action part of your policy, and follow it: If your sexual and workplace harassment policy is zero-tolerance, you’ll have no option but to terminate workers if they cross the line. Think about how you will handle that before firing someone for violating your policy becomes necessary. A policy you don’t follow is worse than none at all.

Your program should acknowledge that sexual harassment does not have to be a man harassing a woman. A heterosexual male making comments about his manhood and mocking the performance of other heterosexual males in the workplace is also sexual harassment.

Step 3: Establish a Clear Complaint and Investigation Process

How you handle discrimination claims determines whether harassment issues continue. You can train employees, but how you respond to a charge of discrimination or harassment will show your workers you want change.

A hostile work environment begins when harassment complaints go unaddressed, or the person making the complaint is treated as the wrongdoer. Take all claims of harassment or discriminatory treatment seriously. Treat harassment claims like any other claim of wrongdoing.

The following tips can help you effectively handle complaints of harassment:

• Investigate every claim: Interview potential witnesses confidentially in private. Don’t assume there will be physical evidence of a harmful encounter.
• Don’t assume the reporter is being “too sensitive”: Don’t downplay with statements like “You laughed at those jokes before,” or “You know Fred is like that.” Something is upsetting the employee now. What happened in the past is no longer relevant.
• Watch for phrases like “unprofessional,” “inappropriate,” or requests to have a different partner: The employee may want to wait to explain the problem or shy away from details. You may need to encourage them to give specifics.
• Don’t take sides:​ Listen to both sides with an open mind. Telling them to “work it out themselves” is not a solution. Understand that reassigning one or the other to a different location or shift may not be a good idea.

If your investigation shows harassment has happened, follow your own policy. Go by the guidelines in your employee handbook. If it states that sexual harassment will result in termination, that must be the outcome. Your policy is only useful if employees can depend on a serious outcome after an investigation.

Legal Help for Employers

Employers have a legal obligation to follow federal and state anti-discrimination laws. An experienced employment law attorney can be a critical partner in this process. They can help you draft a compliant employee handbook, review your anti-harassment policies to ensure they meet state-specific requirements, and provide guidance on conducting investigations. Protect your business and your employees by connecting with a local employment law attorney.