Beauty is in the eye of the beholder… And other reasons you might get sued!

Submitted by Mark Reilly

How can you not be aware of the huge effect from the #MeToo movement? This year we have seen many powerful men exposed and many women empowered. But you are not a Hollywood Mogul, you are not and Elected Official, so why worry? I think we are headed into a time when behavior in the workplace is going to be closely watched and you don’t have to be rich and powerful for an employee to feel empowered. Some of these stories were horrible but others are maybe being questioned as “are we going too far?” I suspect that it will be both. You don’t have to have done anything wrong to have someone take legal action but you still have to protect and defend yourself and your firm by having a review of your company policies and what is acceptable behavior.

So how do you prevent harassment claims in the workplace?
According to the Equal Employment Opportunity Commission (EEOC), employers have a duty to investigate sexual harassment complaints and must take actions to prevent the recurrence of such offensive conduct in their workplace. In addition to these actions, an employer should have a sexual harassment policy in place outlining the company’s intolerance for sexual harassment.

Policy Considerations

Sexual harassment policies should contain the following items:

• Make clear what behaviors, both verbal and physical, constitute sexual harassment, and stress that the company has a strict no-tolerance policy. And that is for all classes of employees and owners.

• Encourage employees to bring forth claims of harassment so that the company can investigate, take appropriate action and take necessary steps to prevent future harassment. Make sure the employee feels safe in these reports and will not face retaliation.

• Guidelines for how to report sexual harassment

• A complaint procedure and a response to the complaints procedure for management personnel

Here are some other things to consider in preventing sexual harassment in the workplace:

• Provide employees with at least two separate resources for reporting sexual harassment complaints. This protects the employer in case the alleged harasser is the employee’s direct supervisor.

• Designate a female and male staff member from Human Resources to receive sexual harassment claims, preferably individuals with experience in dealing with discrimination and harassment. This will be difficult for many small business owners who don’t have an HR staff, but having the two members described above is a great alternative.

• Outline in your policy that employees found guilty of sexual harassment will be subject to disciplinary action, including termination. The disciplinary action should eliminate the harassment and should ensure that the victim feels unthreatened once again. In addition, preventive action should be taken to ensure that a recurrence of the harassment does not occur.

• Discipline for sexual harassment should be as severe as the actions that took place. Punishments should also be consistent for similar actions by different harassers. Again you have to be careful to not have different treatment because it is a manager, favorite salesperson or owner.

• Emphasize that victims will receive no backlash or repercussions if they report sexual harassment. Do not punish the victim for the harassment by removing him or her from their job, department or role within the company.

Overall, if employers take the necessary actions to prevent sexual harassment in their workplace, they should not be found liable for the behavior, should it result in litigation.

Beyond the policy….you should consider a policy

Prevention is the best option and a review of your policy is critical. If you don’t have one and it is not committed to writing you do not have a policy. In addition to having a policy, I encourage you to get a policy, an insurance policy. The name of the coverage is EPLI or Employment Practices Liability Insurance. I will not go into great detail but want to point out one thing to look for. Many EPLI polices have only coverage for first party claims. SO this means it covers your company if it is an employee. I encourage you to look for one that includes both first and what is known as third party coverage. If the complaint comes from your employee interacting with customers or other business related people that are not your employee and you are drawn into litigation you need this.

Mark T Reilly CPCU, CIC, CRM, has almost 40 years’ experience as an insurance underwriter, agent, instructor and expert witness. If you have any questions you can reach Mark at mark@inbuzzgroup.com