Preventing Sexual Harassment at Your Business

Sexual harassment in the workplace is no different than any other workplace harassment. The EEOC defines harassing behavior as "unwelcome sexual advances [or] requests for sexual favors," which have the effect of creating a hostile work environment.

The Equal Employment Opportunity Commission (EEOC) enforces federal and state laws aimed at preventing sexual harassment. Employers are responsible for preventing sexual harassment by developing employment practices and policies that deter harassers.

That may be easy to say, but what if your business is too small to have a human resources department? Are you required to follow anti-discrimination laws if your business is smaller than the federal requirements? Wouldn't you know if a worker was being harassed in a small office?

This article gives some tips for small businesses on complying with sexual harassment laws and training requirements. State and federal laws have similar requirements, so check your local rules before proceeding.

Sexual Harassment and Small Businesses

The U.S. Department of Labor defines a small business as one with fewer than 500 workers. However, companies with fewer than 20 workers make up 89% of small businesses. That means that many federal laws intended to prevent sexual harassment and other forms of discrimination don't affect most businesses in America.

You might think that you would know if anyone was uncomfortable in a small office or company with a dozen people. But one discovery of the #MeToo movement was that many workers were afraid to speak up. This was true in big companies with robust HR departments and small offices where everyone knew one another.

Sexual harassment creates an offensive or hostile work environment. By its nature, this prevents victims from speaking out. Job performance suffers, team cohesiveness breaks down, and the entire company culture suffers. Eventually, the victim or victims quit or are fired for poor performance. Small businesses suffer from constant turnover and retraining of new workers, aside from potential lawsuits and legal action.

Dispelling Sexual Harassment Myths

Sexual harassment at work has many forms. Abandoning some long-held stereotypes and myths about sexual harassment is the first step in fighting it.

• Myth: Only women can be sexually harassed.
  Fact: Harassment is gender-neutral. Women can harass men. Men can harass other men, and women can harass women.
• Myth: It was a compliment/a joke, so it wasn't harassment.
  Fact: The victim's perception matters as much as the speaker's intent. If the statement is offensive, it may be harassment.
• Myth: That's how we do things around here. They'll have to get used to it.
  Fact: Just because there is a culture of harassment does not mean it is correct.
• Myth: The statement wasn't about a co-worker, it was about someone else, so it wasn't harassment.
  Fact: Comments may offend witnesses and third parties.

Sexual harassment complaints are more often filed by females than males, primarily because of the perception that men cannot be sexually harassed or that men aren't offended by dirty jokes. Take all harassment complaints seriously.

Sexual Harassment Prevention Training

Employers are generally responsible for the actions of their workers under a variety of laws and legal theories. As of late 2023 seven states (California, Connecticut, Delaware, Illinois, Maine, and New York) and two cities (New York City and Chicago) require employers to give their workers regular sexual harassment training. Federal and state courts have held that to avoid punitive damages, an employer must have had an anti-harassment policy and held regular harassment training sessions.

Creating a Sexual Harassment Training Program

That may be easy to say, but how does a small business owner create a sexual harassment training program alone? Employee training programs are easy to find online, and a sexual harassment program should follow the same steps. You should consider other factors when crafting a sexual harassment program.

• Know your state requirements: If you do business in one of the states with a mandatory training program, review their guidelines. 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 allow workers to 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. Cornell University has a program for students you can adapt for business use.
• Make firm disciplinary action part of your policy, and follow it: If your sexual and workplace harassment policy is zero-tolerance, then you're going to have 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.

Legal Help with Harassment Policies

Allegations of sexual harassment affect employees and your bottom line. Be proactive and have a training program to avoid possible harassment claims. A business law attorney near you can help you follow state requirements.