With all that is in the news recently about the alleged sexual harassment and sexual assaults perpetrated by Harvey Weinstein, and more perpetrators being identified weekly, our attention has been (or should be) re-focused on what employers can and should do to identify and respond to employee complaints of sexual harassment. A brief primer on what employers should do, at a minimum, is worth re-visiting (and will be far more effective then the many “unequivocal denials” so frequently heard these days).
- Have a written sexual harassment policy. Far too often employers cut and paste policies gleaned from another company or pull one off the internet that does not align with their workplace. You need clear, well-thought-out policies that your employees understand. Be sure the policy explains what harassment is and encourages people to report it. A model policy is available on the Massachusetts Commission Against Discrimination (“MCAD”) website. MA employers of 6 or more employees are required by law to have a written sexual harassment policy which is to be presented to new employees upon commencement of employment.
- Publish your sexual harassment policy. It is not enough to have a policy; it needs to be published and made available to your employees. Publish it in your handbook, or policy manual, or on your company intranet, or by whatever means will insure that it is available and then accessible, if needed, to your employees.
- Hand out the sexual harassment policy on an annual basis. Reinforce your sexual harassment policy by handing it out to your employees annually. You can do this in hard copy or electronically. If you are an employer of 6 or more employees, MA law requires that you hand out your sexual harassment policy to all employees annually.
- Acknowledgement of Receipt of Policy. Have your employees sign (and this can be done electronically as well) an acknowledgement of their receipt of the sexual harassment policy. A policy buried in a handbook, with no stand-alone employee acknowledgment, can be interpreted as mere words on the page with no real meaning. Worse still, employees may claim (sometimes truthfully) that they never received or read it. A policy given to employees and acknowledged in writing is critical.
- Training, training, and more training. Hold training sessions for your management and supervisory employees (at least). The MCAD offers training at its offices in Boston, Worcester and Springfield. You must register and there is a cost associated with attending. You can also arrange for private training at your place of employment through the MCAD, which must be pre-arranged and has a cost. The MCAD also has a “trainer referral list” of those individuals (both lay persons and lawyers) who have undertaken training at the MCAD (Train the Trainer programs). In addition, many lawyers who practice in the area of employment law provide highly effective training. Training is an obvious, but often overlooked or sporadically implemented, step. If you have a Human Resources person or staff, make sure they are trained in how to identify, investigate and address allegations of sexual harassment. Make sure your supervisors can identify harassment and know what to do when they see it or get a complaint. Educate employees in the company’s reporting procedures and make sure they understand that the company will not tolerate retaliation for a complaint. Finally, implement the training in a manner that avoids the holes created by employee and supervisory turnover.
- Hotline. Consider setting up a hotline for employees to use where they can report issues in the workplace, including doing so anonymously.
- Complaint Process. Publish a complaint procedure, which can be a part of your sexual harassment policy, setting out, step by step, what an employee should and is encouraged to do if they either are the victim of sexual harassment or observe others engaging in sexual harassment directed at other employees. Make sure you identify the right person(s) to receive complaints. A complaint procedure merely advising employees to report harassment to their immediate supervisor, who has little or no training in how to identify or address harassment, is ineffective and will be of little help. Carefully consider who is best suited and trained to receive allegations about harassment and properly address them and draft your complaint procedure to match.