He looked at her with a certain longing. He saw the way she looked at him over the last two weeks since they met. He knew there was something there between the two of them. She was definitely giving him those “certain” looks. Finally, he decided to move on his “gut” feeling. So the next day he sat down next to her on the couch and put his arm around her shoulder. With a big squeeze, he asked her out to dinner that night. He figured that relationship was just going to be great!
Unfortunately, the couch was in his office and the woman reported to him at work. Worse yet, the incident took place during regular business hours. So a couple of months later, he and his attorney were in the office of the field investigator from the Arizona Civil Rights Division trying to explain why he was sexually harassing his employees and why the company didn’t have a sexual harassment policy. He learned the hard way that gut feelings and flirtations (and touching) in the workplace are illegal. And by the way, he wound up paying about $30,000 in an out-of-court settlement (not counting attorney’s fees).
How could this be prevented? First, you should know there are Tucson, Phoenix, state and federal laws against sexual harassment. The EEOC, which enforces the federal laws, strongly encourages employers to have a comprehensive written anti-sexual harassment policy. Frankly, if you don’t have one, consider yourself behind the proverbial eight ball before you even get started. So your first step in preventing the above scene occurring at your place of work, construction site or an after work party, is to have a comprehensive policy against sexual harassment.
So what should be in the policy? First, you should define the prohibited conduct. There should be a clear statement of each element prohibited, i.e., sexual jokes, cartoons, touching, emails, etc., and that such conduct could lead to termination. One person should be designated as the “go to” person with complaints. That person must have the ability to impartially investigate the complaint. So, the second thing in the policy should be a complaint procedure.
Third, I recommend that there be one policy directed at employees and a separate one for supervisors. They have very distinct provisions, duties and responsibilities in them. In each of those, there should be a very strong anti-retaliation provision. No employee should feel that their job is in jeopardy because they filed a complaint. Supervisors must be told that they cannot treat an employee differently because of an allegation of harassment. Further, supervisors should be informed that all complaints are confidential as well.
That policy should clearly state that it applies to employees, customers, clients and any third party. It should prohibit conduct on the employer’s premises and off, such as employee get-togethers, softball games, etc.
Finally, every employee, supervisor and even the owner should get a copy of the policy and sign a receipt for it, and that receipt placed in the employee’s file. It should be incorporated in the employee manual/handbook. If you don’t have a manual, my advice is to have an experienced employment lawyer draft one. It will save you in the long run. And then you must enforce it! No policy is worth anything unless you enforce it evenly and without exception. Be alert for jokes, emails, cartoons, and unwanted touching. Even if the employees are all participating, you never know when that line will be crossed. It is safer to keep it out of your workplace in the first place!
Thom Cope is an ACT member attorney with over 30 years employment and human resources law experience. He has been listed in Best Lawyers in America and has written a book, The Executive Guide To Employment Practices.
