There is an epidemic of harassment and harassment claims across the country. The standard fare for dealing with such claims in the past has been to: (1) have a good policy statement that is well publicized; (2) provide training; and (3) investigate and take appropriate remedial action when complaints arise. While these are still the basics of dealing with harassment cases, most recognize that today they are not enough.
Workforce statistics indicate that about half of all females are victims of some type of harassment in their work. Less than 10% actually report the harassment. However, with the issue being in the newspapers and on the radio so much now, undoubtedly women and other protected groups will feel increasingly emboldened to come out and report their harassment and demand action.
Congress itself is quickly passing laws to require its members and staff to undergo sexual harassment training. At least three states have already taken that approach, including California, Connecticut and Maine. These states require information to be posted in the workplace that details the complaint process and requires annual sexual harassment training. However, the states have not seen any decline in sexual harassment as a result of the new laws. California officials report that their training, which has been mandated since 2005, is not working.
A term keeps coming up in analyzing what can be done to improve the situation, and it is the term "corporate culture." In considering this issue, this writer is reminded of the ethics policies most companies implemented years ago, with the intent to implement a culture of ethics compliance. Perhaps some of the same principles can be applied to harassment. As a starter, the top management must not only buy-in, but also set the example. Everyone needs to know that harassment prevention is a company priority. This also means that employers must be more serious about their remedial actions where there is harassment, so that workers have a reason to fear consequences of engaging in harassment. Further, during investigations, employers should focus more on whether the "harassment" tends to make employees uncomfortable, regardless of whether or not it meets the definition of illegality under the law.
Improvements can also be made in options for reporting harassment. It should definitely not be required to report harassment to their immediate supervisor, who may a harasser or friendly with the harasser. An increasingly used device includes having an outside entity provide a hotline that can pass on the incidents to be investigated.
This writer is not yet willing to support abandoning the importance of training. He remembers his own training a number of years ago conducted by the American Management Association, when he was told "never touch" a student. That simple rule is a good one to apply today, particularly where some believe so much in the concept of "hugging," which many like, but some don’t like. There are also much greater reasons today to conduct harassment training for regular rank-and-file employees, and not confine such training to management and supervision. After all, a majority of the harassment liability comes from co-workers, and not necessarily management. Further, training of the workers themselves may cause potentially offending supervisors to avoid harassing conduct, knowing the importance and sensitivity of the issue.
On the other hand, in conducting training, employers must be careful in not equating harassment with physical touch. Inappropriate jokes, statements or even comments on appearance may also constitute sexually harassing conduct. Therefore, training must focus on lesser forms of harassment as well as the most serious. It is not that important that the persons trained understand the legal definition of harassment, as a little uncertainty may make them more cautious in what they do. Further, supervisors and even rank-and-file employees need to know what to say if they witness inappropriate statements in a group. It may be enough to say that such comments are inappropriate and cannot be allowed and make it clear to the offending employee that they will talk about it privately later. Training as to what bystanders should say when they witness inappropriate statements or conduct is a new part of training being emphasized today. Some training goes beyond the simple "no's" and emphasizes what good conduct should include. It is further important that training be frequent, and that the workforce and/or management should be reminded about the issues during meetings for other purposes. Companies can no longer talk about harassment during orientation training and think they have accomplished their purposes.
An issue that seems to be forgotten today is proportional remedial action. Zero tolerance does not mean that every harasser should be fired. The action should be proportional to the offense. Some studies indicate that victims do not usually want to see the harasser fired, only the misconduct to cease. Many believe that if every harasser gets fired, many victims will not come forward because they really do not want to have the harasser fired.