Sexual Harassment in Small Businesses – Employees’ Rights

by Petrone Risk

While sexual harassment in any workplace should be eliminated, sexual harassment in small business settings often goes unreported, unnoticed or is not dealt with in a proper manner.

Sexual harassment problems in small businesses should be unveiled and efficiently dealt with, as most employees in such a setting often become personally invested in the business sometimes causing professional boundaries to be unclear.  Thus, employee relationships at small businesses often are far less formal than those in large corporations with strictly enforced hierarchies. This less formal setting makes it imperative to have a sexual harassment policy clearly identifying acceptable versus unacceptable workplace behavior.

Types of Sexual Harassment:

There are two types of sexual harassment: quid pro quo and hostile work environment.

1.   Quid pro quo refers to situations where employment decisions such as hiring, firing, or promotions are contingent upon the employee providing sexual favors.

2.   Hostile work environment sexual harassment refers to situations where the employee’s work environment is made intimidating, hostile, or offensive due to the unwelcome sexual conduct and the conduct unreasonably interferes with the employee’s work performance.

A policy prohibiting sexual harassment and/or implementing a complaint procedure is not enough.  Neither shield an employer amidst allegations of quid pro quo harassment.  The only way to avoid liability is to ensure that such conduct does not occur and to quickly follow up and take appropriate action if it has occurred.

Conversely, where a hostile work environment claim is made, the employer can escape liability where it shows that it exercised reasonable care to prevent and promptly address and correct any sexually harassing behavior and that the plaintiff-employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employee.

Who and How Will Companies be Subject to Liability…

If the company has 15 or more employees, then federal discrimination and sexual harassment law covers the employees.  As such, if the company has a sexual harassment policy, employees must report the occurrence in writing.  In the event that the company does not have a sexual harassment policy, or does not take action on the employee’s written complaint, the employee’s next step is to file a complaint with the EEOC.  The EEOC complaint must be filed before the employee is allowed to file a state or federal lawsuit.

Additionally, in New York, an employee who claims to have been sexually harassed may file a state lawsuit so long as the company has at least 4 employees.

Consequences and Prevention…

Sexual harassment in any setting may have financial repercussions as it often causes damage to the company’s reputation and profitability.  In particular, sexual harassment impacts the company’s profitability because the company will often be forced to shell out legal expenses, and sometimes the harassment affects the employees’ overall morale.

To properly prevent sexual harassment, companies, regardless of their size, should adopt a clear sexual harassment policy, train all employees, supervisors and managers (being mindful to conduct employee trainings separate and apart from supervisory training sessions), monitor the workplace and, most importantly, take all complaints seriously.  Further, an environment should be made to exist such that employees feel comfortable when making such a complaint.

Importantly, when an employee desires to file a complaint, the company’s policy should be clear as to whom reports should be made to and the authority and procedure for handling the complaint.

Thus, regardless of the company’s size or formality, such prevention plans and protocols should always be in effect to protect your employees and your company.

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