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Discrimination and Sexual Harassment Policies

It's imperative that you provide a safe and comfortable working environment for your employees.

Although sexual harassment is one of the biggest issues facing employers these days it's not the only type of discrimination you need to be concerned about. Under the Civil Rights Act of 1991, employees who believe they were victims of job discrimination due to race, religion, sex or disability are entitled to a trial by jury.

While companies with fewer than 15 employees are generally exempt from federal discrimination laws, most states have their own laws prohibiting discrimination, which, in addition to protecting a wider range of categories of employees, include smaller businesses within their scope and procedural and evidentiary standards more favorable to claimants. Apart from the tendency of some juries to award plaintiffs disproportionately high monetary damages, litigation in this area of the law can be extremely costly, even if you prevail. One attorney estimates the average legal fees for defense in a sexual harassment suit, regardless of the verdict, are upwards of $75,000.

Concerns over the discrimination are more important than ever in today's increasingly diverse business world. If you run a small business, chances are you will be dealing with employees from many cultures, races and age groups. How can you keep things running harmoniously and protect your business from legal risk? The best policy is to make sure that everyone in your workplace understands what constitutes harassment and discrimination--and also understands the benefits of a diverse workplace.

Big companies may spend thousands on diversity training, but there are plenty of low-cost options available:

  • Learn as much as you can from books on the subject and from exposure to people who are different from you.
  • Investigate video series on managing diversity. Many are available for rental or purchase.
  • Consider public programs. A growing number of Urban League, chamber of commerce, Small Business Administration and community college seminars and courses are bringing business owners

Creating a Sexual Harassment Policy
One of the best ways to prevent sexual harassment is to have an anti-harassment policy. Below are some of the key questions associated with such a policy.

What is sexual harassment? There are two types of sexual harassment. The first is "quid pro quo." In its most basic form, this type of sexual harassment involves an employer asking an employee or a job applicant for a sexual favor in return for employment or some job benefit.

The second category is "hostile work environment." In contrast to "quid pro quo," this type of claim is more difficult to define, yet occurs more frequently. Many people may not even realize that they have been a victim of this type of harassment, or even that they may have been a harasser. Typically, a hostile work environment claim involves a supervisor, co-worker or customer making unwelcome sexual comments or remarks, or suggestively touching or acting in a sexually inappropriate way toward an employee.

What should be included in an anti-harassment policy? The Equal Employment Opportunity Commission's (EEOC) Guidelines suggest the following key elements be included:

  • Clear explanation of prohibited conduct.
  • Assurance that employees who make complaints or participate in an investigation of a complaint will be protected against retaliation.
  • Clear description of complaint process.
  • Assurance that the employer will protect the confidentiality of complaints to the extent possible.
  • Complaint process that provides prompt, thorough and impartial investigation.
  • Assurance that the employer will take immediate and appropriate corrective action when an investigation determines that harassment has occurred.

How does an anti-harassment policy help? One of the best ways an employer can prevent claims of sexual harassment is to educate everyone on the job, and one of the easiest ways to educate everyone is to have an anti-harassment policy. You must keep in mind, though, that you should not simply announce a policy. The best and often easiest way to properly educate yourself and all employees is through a training program regarding the policy.

As the employer, you need to be informed of the law and your obligations, both of which may change as a result of new legislation and court decisions. As for supervisors, they typically have the majority of contact with the employees, and their behavior could result in liability for the employer. Thus, they need to be informed as to what could be considered inappropriate behavior and need to be trained to handle potential complaints. With respect to employees, they, too, should be informed as to what could be considered inappropriate behavior and what the potential corrective measures against such behavior include. They should also be informed of their right to raise the issue of sexual harassment, and how to raise it.

After you have properly trained everyone, follow through with the policy. This means developing appropriate sanctions, promptly investigating all allegations of harassment and taking the appropriate corrective measures in response to any investigations.

As a business owner, you should also set a good example for your employees. Some ground rules to help keep you out of trouble.

  • Don't touch employees inappropriately.
  • Never date someone who works for you.
  • Don't demean others or make suggestive comments. Watch your mouth; what seems humorous to some may offend others.

In sum, if you want to protect yourself as an employer, make it clear to your employees that you strongly disapprove of any form of harassment, including sexual harassment. The best way to do this is by implementing a policy against harassment, educating the work force regarding the policy and enforcing it.

If It Happens...
Even if an incident does arise, the good news for business owners: Most complaints can be solved at the company level, before the issue comes close to a courtroom. To make this work, however, time is of the essence. Don't put off dealing with complaints, or the victim is likely to stew.

Give both parties a chance to tell their side of the story. Often, the cause is a simple misunderstanding. To cover your bases, your may want to have a neutral consultant or human resources professional from outside the company investigate the matter.

This article was excerpted from Start Your Own Business and "Do I Need a Sexual Harassment Policy" by Larry Rosenfeld.

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