• Marc Kroop

Preventing Sexual Harassment and Discrimination In The Workplace

Prevention of sexual harassment starts with a proper and compliant anti-sexual harassment policy that is provided to the company's employees at the outset of their employment. However, having a compliant sexual harassment policy is only a first step of several that is required to eliminate sexual harassment in the workplace. An employer's sexual harassment policy must be continually enforced and then reinforced by the employer.

Best practices dictate that the employer take the time to discuss the employer's anti-sexual harassment policy with the employee, at the time of hire. The employer should request that the employee read the policy, ask any questions the employee has about the policy and then sign and date the policy. A copy of the employee's acknowledgement of the sexual harassment policy must be maintained in the employee's personnel file.

A proper sexual harassment policy informs an employee about the employee's obligation to report any instances of harassment or abuse that is either directed at the employee or at any other employee. A specific person(s) to whom the employee may report incidents of harassment should be identified as part of the policy. An effective anti-harassment policy must also provide information to the employee about their right to make a complaint of sexual harassment to an outside agency for investigation (California Department of Fair Employment & Housing or federal Equal Employment Opportunity Commission). Information about how an employee may contact these agencies must be included in the policy.

The company's anti-harassment policy needs to provide employees with specific examples of inappropriate sexual harassment. A proper sexual harassment policy also informs employees that the employer will investigate claims of harassment and that the company will take all necessary steps to prevent sexual harassment and discrimination in the workplace.

Often, employees are concerned about whether their complaint of sexual harassment can be kept "confidential." An employee may make a request for confidentiality for their complaint because they are concerned about retaliation by the person against whom the complaint being made or even by other employees or managers in the company that appear to be on board with the offensive behavior of the harasser. Those employee concerns should be addressed in the company's sexual harassment policy as well. The company's sexual harassment policy should assure its employees that while it may be impossible to maintain confidentiality in investigating a sexual harassment complaint, the company will not tolerate any retaliation against the employee for having made such a complaint. Further, if the employee believes that they are being retaliated against due to their complaint, the employee should immediately contact and inform the person(s) designated by the company to investigate their concerns.

Significantly, the employer cannot request that an employee making a complaint of sexual harassment keep their complaint of sexual harassment confidential. Employees have the legal right to openly discuss their work conditions with other employees.

When investigating complaints of sexual harassment, an employer should maintain an appropriate investigation file. This file should include copies of all documents reviewed, notes of witness interviews, copies of witness statements and any conclusions the investigator has made about the investigation.

Significantly, the employee should be informed about the results of the employer's investigation and whether or not the company was able to verify the employee's complaint(s). If it is determined that harassment occurred, the employee should be informed about the steps taken by the company to prevent any future acts of sexual harassment. Appropriate actions to prevent harassment include a verbal or written warning, last chance agreement, separation of the victim and harasser, or, suspension or termination of the harasser.

The most important point, that cannot receive enough emphasis, is that employers must take extreme care in meting out disciplinary action against an employee determined to have engaged in acts of sexual harassment. Ineffective disciplinary action taken by the employer that does not permanently end harassing behavior, is grounds for liability for the employer in a lawsuit.

Regular follow up with the employee who made the complaint should be ongoing for a lengthy period of time to ensure that no additional acts of harassment have occurred. We have been a part of cases where even termination of the offending employee did not stop the harassment. Other employees that were sympathetic and friendly to the harasser took up where the harasser left off, after the harasser's termination. In these cases, ongoing discussions by the employer and employee for a lengthy period of time are part of the process.

As an aside, even if the employer's investigation results in a finding that no sexual harassment occurred, the employer should still take steps to reinforce its policies in writing and also in an in-person meeting with the complaining employee to confirm its findings and reiterate its policy against harassment and retaliation.

Since 1993, Kroop Labor Law's managing attorney, Marc G. Kroop, has been a leading advocate for employee rights in California. Mr. Kroop's has had significant success in representing victims of harassment and discrimination in the Bay Area. Mr. Kroop also teaches classes on sexual harassment prevention for supervisors and managers. Mr. Kroop instructs supervisors and managers on how to properly identify and classify claims of sexual harassment. Mr. Kroop then provides instruction on proper investigation techniques and how to determine of appropriate measures that employers must take to prevent ongoing harassment in the workplace. If you have issues or concerns related to sexual harassment or discrimination in the workplace, you may contact Mr. Kroop directly at (925) 989-8264 Otherwise send us an email to info@krooplaborlaw.com and we will provide you with an immediate written response to your concerns.

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