How long is it since you revisited your Sexual Harassment policy? Do you have a current one? Are you running exposures that you don’t even realise? I would guess you would have considered Google was on top of these risks, but look at what happened today. Googles staff in Dublin staged a walkout today over the way they treat women!
Revelations of sexual misconduct among business and political leaders around the world in the context of the rise of the #MeToo movement means that it is time to reassess and revisit your policies, practices and to be personally alert as to the risks you may run as a business leader. In today’s environment what was fine 10 years ago and carried little risk, today would post significantly more risk and any business leaders who ignore or tolerate signs of workplace harassment (or worse) is living at their peril. A company without a current, robust and enforced sexual harassment policy leaves itself open to being sued and doing immense reputation damage to the business. Just yesterday, a female friend confided in me that one of the Directors of an Advertisement Agency had continually engaged in the sexual harassment of women which she had left some years ago. She said that while talking with ex-colleagues that the practice was still prevalent and no one had called a halt to the behaviour. However, my friend has been given the courage from the #MeToo movement to write to the perpetrator explaining how she still feels many years later about his behaviour and that he should now make a significant evidenced donation to a charity or she would go public.
For these reasons—and to reduce the risk and the effect of brand-damaging publicity —it’s essential to re-examine your company’s sexual harassment policy and update it as required. Here are key steps to consider:
Ensure the policy is clearly defined. Many people cling to the misguided belief that “I know sexual harassment when I see it.” Unfortunately, that approach is too vague and subjective to have any value. The key to effective harassment prevention is ensuring that everyone throughout the business understands a) specifically what constitutes sexual harassment b) the consequences for taking part in unacceptable workplace conduct, c) the ways in which incidents of harassment can be reported d) and what will happen next. Removing all ambiguity from your policies is among the most important elements of a formal anti-harassment program. However to make your policy really clear it is necessary to examine the legal basis.
Definition: As defined in section 8 of the Equality act, 2004.
14 A.
(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—
(i) employed at that place or by the same employer,
(ii) the victim’s employer, or
(iii) a client, customer or other business contacts of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,
or
(b) without prejudice to the generality of paragraph (a)—
(i) such harassment has occurred, and
(ii) either—
(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated,
the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—
(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.
(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.
(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.
(5) In this section ‘employee’ includes an individual who is—
(a) seeking or using any service provided by an employment agency, and
(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),
and accordingly, any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.
(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12.
(7) (a) In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”.
So you can see from the definition that, what is one person’s view of sexual harassment, might not be another’s view and therefore one must look to the legal definition.
There are a few noteworthy points which you may not have considered.
a) It comes under the area of discrimination by an employer in relation to the victim’s conditions of employment.
b) It’s not just the Boss/Subordinate relationships which come within the definition, but fellow employees, clients, customers and business prospects.
c) Your defence is to show that you took reasonable, practical steps to prevent or reverse its effects.
d) Where someone’s personal dignity is violated, through the unwanted, verbal, non-verbal or physical conduct of a sexual nature which creates an intimidating, hostile, degrading humiliating or offensive environment, it constitutes sexual harassment.
In one case, I encountered, a male colleague said to another male gay colleague “Ladies before Gents” when opening a door for them. This was conceived as humour by one party, but offensive and humiliating to the other party. This was clearly a case of sexual harassment for an openly gay man. In another case involving a retailer was heard in February 2018, where among other comments a male colleague asked a gay female colleague, “why she didn’t like men”, an award of €8,000 euro was made in addition to other orders. The secondary issue is that as an employer you are liable for the actions of your employees whether you are aware of them or not. Section 15 of the Employment Equality Act, 1998 provides that:
(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
( a) from doing that act, or
( b) from doing in the course of his or her employment acts of that description.
Section 85 A 1: Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
One could say, that one is guilty until proven innocent once the facts have been established by a victim. The exposure can also be significant, not just in terms of the impact on the culture of the organisation, reputation in the business community etc. but also the financial exposure, where the Workplace Relations Commission can award up to 2 years remuneration in certain circumstances. It is also noteworthy that your exposure can be brought through the courts within 2 years of the injury.
A few tips that should help you avoid this risk:
Don’t disregard or procrastinate on reports of harassment. As disagreeable as this behaviour is, business owners and CEOs should never disregard reports that come to their attention. If you “ignore sexual harassment, you are sitting on a ticking time bomb.” It’s impossible to predict “when a claim may arise that could take down your business.” Updating and enforcing a viable policy can help prevent this dire outcome.
Anticipate likely situations in your workplace. Business settings differ widely, as do the ways in which employees interact with each other (and with their supervisors). Overt sexual harassment is generally easy to spot, but more subtle misconduct may occur in ways that are specific to a certain type of culture and workplace. Take time to anticipate scenarios involving harassment that might take place in your business. Imagining such circumstances can then lead to updates in policy that reflect a changing workforce culture.
Have your policy reviewed by a legal expert. As thorough as your policy might be, you must be sure it complies with all relevant legislation and best practice. The best strategy is to engage the services of an expert in this area, who can review the document and confirm that it’s both appropriate for your workplace and complies with the law.
Implement training schedules for all employees. Regardless of what’s legally mandated, ongoing training about how to avoid sexual harassment, and to identify and report incidents when they occur, should be required of your entire workforce. Knowledge and awareness are powerful resources in the effort to eliminate all workplace misconduct at your place of business.
Informal resolving of complaints. If avoidable it is always best to resolve complaints internally rather than having staff making formal complaints to the Workplace Relations Commission. As an employer, you need to ensure a fair, timely and independent investigation of an allegation. In the case where there is an exposure arising, it is best to get a speedy written apology from the perpetrator for the hurt and humiliation caused and to gain acceptance from the complainant that the actions taken are the closure of the case.
Sexuality and Gender: Gender is a fluid concept today compared to what it was years ago when it was described in a binary form based solely on physical biological factors. Gender today is on a spectrum in different dimensions and most of us have not been taught what it means and how to deal with the challenges and sensitivities that certain individuals may have in respect of their gender. Based on the number of young people today, who will articulate who they are and what they are attracted to in a non-traditional manner, I believe we can safely assume that there are many older generations who feel the same but have not yet had the confidence to express it. You may have to start by educating yourself on this topic as it is likely to become more of an issue in the workplace. One useful resource is to review some TED talks on gender.
Sample Policy:
Dignity and Respect at Work Policy
The Dignity and Respect at Work Policy affirms that all staff members have the right to be treated with dignity and respect. We believe that, if staff members feel they are treated in such a manner, it leaves them free to concentrate on making a positive and value-adding contribution to the workplace.
Sample Company will not tolerate bullying, harassment or sexual harassment in any form, and Sample Company is committed to ensuring that staff members are provided with a workplace free from bullying, harassment and sexual harassment.
This policy recognises that it is up to the staff member to decide what behaviour is unwelcome irrespective of the attitude of others. In determining whether or not the behaviour is acceptable, the intention of the wrongdoer is irrelevant, the fact that the wrongdoer does not have the intention of bullying, sexually harassing or harassing the staff member is no defence. It is solely the effect of the conduct on the recipient which is relevant. Further, behaviour does not necessarily have to be continuous and repeated to be inappropriate. A single incident, if sufficiently serious, is adequate to warrant investigation.
Complaints by staff members in relation to this Dignity at Work Policy will be treated with fairness and sensitivity and in as confidential a manner as possible; complaints in the first instance should be directed to your Line Manager, their Manager and/or HR, as appropriate.
Leadership: Finally, you must lead from the top. The culture you create will often be a reflection of your own belief system. You firstly must check that your belief system is the appropriate one for the workplace today. You must also show you mean business and that is by acknowledging in public at meetings and gatherings and at staff induction that company policies include a zero tolerance for any form of sexual harassment. If you have a story which illustrates these values, tell it and make it part of your everyday storytelling and your people will “get it” that sexual harassment is a complete “no-no” at your company. Frame it in the positive and “Make gender equity a part of your daily conversation,”. Be sure it’s not only explicitly stated, but that it filters through all ranks.
Employees will follow your lead. It’s up to you to show the way.
Learn more about creating a safe workplace environment and leveraging your employees’ talents for strategic growth. Consider joining a peer board made up of local business owners like you. No matter what the problem you may face, someone will have travelled that road before and will have insights to share on how they handled the matter.
