Learning objectives

• Recognize what constitutes sexual harassment, its negative impacts, and the importance of having a sexual harassment policy

• Define the terms gender identity, gender expression, sexual orientation, transgender, and gender stereotype

• Identify examples of physical, verbal, and displayed harassment, quid pro quo sexual harassment, electronic harassment, and abusive conduct

• Identify who is liable in harassment situations

• Recognize the actions an employee, a bystander and a supervisor should take when harassment is observed and/or reported

• Recognize proper conduct and procedures for working on a harassment investigation, as well as protections that should be implemented during an investigation

• Identify expected responses and consequences after an investigation

• Recognize examples of retaliation due to complaints of harassment and discrimination

• Describe actions employees can take to help prevent harassment in the workplace

• Describe steps employees and management can take to prevent sexual harassment in the workplace

Course overview

This lesson informs management personnel (employers, managers, and supervisors) of the liabilities and consequences associated with sexual harassment and other types of harassment in the workplace. In addition to the content that all employees receive, the lesson covers topics such as the legal responsibility of supervisors to recognize all forms of sexual harassment and deal with issues quickly, how to respond to and report sexual harassment complaints, interviewing best practices as part of sexual or other harassment investigations, and the supervisor’s role in preventing sexual or other harassment.

In California, employers who have 5 or more employees must train all employees on sexual harassment and abusive conduct prevention. Specifically, employers must provide:

• 1 hour of training to non-supervisory employees every 2 years

• 2 hours of training to supervisory employees every 2 years

The minimum count of 5 employees includes:

• Seasonal, part-time and temporary hires

• Contract employees

On August 30, 2019, California Gov. Gavin Newsom signed a new bill extending the deadline for compliance with the new sexual harassment prevention training requirements (signed in to law in 2018) by one year. Under SB 778, employers with five or more employees now have until Jan. 1, 2021, to have their employees complete the mandatory one- or two-hour sexual harassment prevention training to be compliant.

In management, you have to have a plan for addressing sexual harassment in the workplace, and you should provide training on at least an annual basis, because sexual harassment is, first, a crime, but it is also an expensive one that threatens the viability of your operation.

Sexual harassment incidents trouble the work environment by establishing a negative setting that can ruin working relationships, lower productivity, result in costly administrative actions and even more expensive litigation. You need protect your employees from sexual harassment and educate them on the explicit policy, encouraging them to report violations freely.

Adherence to the sexual harassment company policy is essential. A ‘zero tolerance’ policy is the best option. This will help you avoid liability and disciplinary action by fulfilling your management responsibilities. It will also help reduce the number of sexual harassment incidents.

Employers are liable for unlawful harassment by supervisors. Supervisory authority is determined by a person’s job function rather than job title.

An individual is qualified as a supervisor if the individual has authority to:

• Undertake or recommend tangible employment actions affecting the employee, or;

• Direct the employee's daily work activities.

Employer Responsibilities Under California AB 1825

• Provide all managers and supervisors with sexual harassment training.

• Ensure the company has a written sexual harassment policy.

• Distribute the written company policy to all employees.

• Have managers/supervisors read and acknowledge receipt of the company’s written harassment policy.

• Ensure the company policy includes a complaint process with appropriate sanctions for inappropriate behavior.

• Provide an alternate reporting avenue beyond the employee’s immediate supervisor (e.g., HR or Senior Manager).

• Express strong disapproval of sexual harassment.

Appropriate Employer Response to Sexual Harassment Charges

• Conduct proper investigations when necessary.

• Take prompt and effective corrective action.

• Ensure the victim is “made whole”—try to resolve issues to the satisfaction of the employee that brings forward any claim.

The Essential Elements for a Company’s Harassment Policy

1. A definition of harassment.

2. Direction to those who believe they are being harassed, including an alternative for reporting other than their immediate supervisor (e.g., HR a Senior Manager).

3. A commitment to investigate complaints and take appropriate, prompt, and effective action.

4. A statement that retaliation will not be permitted against anyone who makes a complaint or cooperates with an investigation.

Supervisor Responsibilities Under California AB 1825

• Maintain a work environment free of sexual harassment.

• Be able to identify sexual harassment.

• Prevent sexual harassment incidents.

• Respond effectively to sexual harassment.

• Understand federal and state laws and your company’s policy.

• Create and maintain a positive, productive workplace.

• Model appropriate behavior.

• Contact Human Resources with concerns and complaints.

• Take appropriate steps to eliminate behavior that might be perceived as sexual harassment.

• Investigate every complaint.

• Maintain confidentiality, except for disclosure reasonably required by the investigation.

Hostile Work Environment Sexual Harassment

• Sexually harassing behaviors by a manager, supervisor, another employee, or a third party, that are sufficiently severe, persistent or pervasive to unreasonably interfere with an employee’s job performance;

• Courts employ a "reasonable person" standard;

• A person does not have to be the target for a hostile work environment to occur.

What Management Should Do to Prevent Sexual Harassment

• Develop and publicize a sexual harassment policy that clearly states sexual harassment will not be tolerated and that explains what types of conduct will be considered sexual harassment.

• Develop and publicize a specific procedure for resolving complaints of sexual harassment.

• Develop methods to inform new management and employees of the company's sexual harassment policy and reporting procedure.

• Conduct annual sexual harassment awareness training for all employees.

How to Educate Employees to Prevent Sexual Harassment

• Create and maintain a positive, productive workplace.

• Model appropriate behavior.

• Observe interactions in the workplace.

• Confront harassers.

• Stop harassing behaviors immediately.

• How to Educate Management and Employees to Prevent Sexual Harassment

• Conduct sexual harassment awareness training for all employees regularly.

• Review the company sexual harassment policy.

• Outline acceptable, unacceptable, and illegal behavior.

• Explain the company’s no-tolerance policy.

• Outline the consequences for inappropriate behaviors.

• Explain how to respond to harassment.

• Explain how to report it if it occurs.

• Encourage employees to read the company policy.

• Act quickly when you observe harassing behavior.

• Assure employees that incidents of sexual harassment will be dealt with promptly.

• Disapprove strongly when made aware of or observing harassing behavior.

How to Create and Maintain a Positive, Productive Workplace

• Keep communication lines open.

• Establish clear work goals and expectations.

• Get to know your employees.

• Orient new employees.

• Maintain high visibility in the workplace.

• Foster teamwork, assess employee interactions, and correct conflicts.

• Reward positive, productive behavior.

• Establish mutual respect as a norm.

How to Model Appropriate Behavior

• Treat all employees fairly.

• Implement policies consistently.

• Participate in training.

• Openly discuss harassment with all employees.

• Model how to treat other employees without discrimination.

• Act quickly when any harassing behavior is seen.

• Ask Human Resources for help when in doubt.

Sexual harassment is a crime that creates a whole host of problems in the workplace. First, no one should have to work with the fear of being subjected to unwanted advances from colleagues. Sexual harassment has a chilling effect in the workplace that fractures working and personal relationships, and damages the reputation of employers that foster such an environment. Liability is high in sexual harassment situations, so there is good reason to take every measure possible to deter sexual harassment behavior.