More Than a Policy is Needed to Minimize the Risk of Sexual Harassment Claims

Sexual harassment has been unlawful in the workplace for more than 50 years.  Yet it remains the most visible employment issue facing employers across America today.  Victims of sexual harassment are emboldened to speak up.  A remarkable number of business leaders in many industries are being called out publicly for alleged bad behavior and forced to step down.  Every day there are allegations in the headlines and news of another firing due to inappropriate conduct.

According to EEOC statistics, last year more than 13,000 administrative charges alleged sex-based harassment. As more victims find their voices, it will be no surprise if the number of sexual harassment charges filed with the EEOC reach record numbers in 2018.  Businesses face huge legal and reputational risks if they turn a blind eye to serial perpetrators at any level of the organization, but especially at the top. In today’s climate, the wisest business practice will be to identify pro-actively inappropriate behavior and end it swiftly and decisively.

Construction companies in particular remain vulnerable to increased sexual harassment claims, especially those companies who historically employ a small percentage of female craft workers and even fewer women in supervisory ranks.  So what should concerned businesses be doing to reduce if not eliminate the risk of sexual harassment claims in the workplace?  Consider the following action steps:

1.  Increase an HR presence in the field.  If possible, assign a dedicated HR representative to a job site.  If that is not feasible, at least consider increasing the frequency that an HR representative visits field worksites and checks on how women are being treated.

2.  Make sure employees are encouraged to utilize your company’s open door policy and report concerns about inappropriate treatment on the job.  Periodically check that worksite bulletin boards have this information posted. Also, cover the policy and the various reporting avenues at all-hands meetings or jobsite safety meetings.

3.  Consider conducting an anonymous employee survey to determine whether employees are comfortable reporting their concerns to management.  Such a survey can also be used to discover unreported and festering harassment issues that ultimately can negatively and financially impact the company and pose continuing legal risks if those issues are not properly addressed.

4.  Make necessary or desired adjustments to the content and frequency of anti-harassment training.  Make sure the policy includes assurances to employees that there will be no retaliation for exercising their rights under the policy.  Schedule training for all employees at all levels of the company.

5.  Review existing anti-harassment policies and audit the effectiveness of their complaint reporting mechanisms and anti-retaliation precautions.  Consider what additional steps beside having an anti-harassment policy and periodic training would demonstrate to your employees the company’s commitment to equal employment opportunities and a harassment-free work environment.b.

6.  Because workplace culture is critical to identifying and preventing harassment, schedule and spend time on leadership “buy-in” before rolling out an updated policy, and educate leaders regarding how best to proactively promote a workplace culture free from harassment, and spell out for them the potential consequences—both to the company and to them individually—of failure to achieve such a culture.

7.  Identify vulnerabilities by harnessing complaint data, both historical and current, to determine if there are any trends by geographic location, supervisory personnel or craft category.  Use available information to determine if a particular job site or a supervisor or a crew are routinely implicated in harassment complaints.  If so, take effective remedial action to end the harassment.  Hold employees accountable for their bad behavior in a meaningful and proportional manner.  This can be done through counseling, disciplinary actions up to and including termination, and requiring additional diversity training.

Mark Jodon

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