Inappropriate relations

Unfortunately, sexual harassment in the workplace happens, and pizzeria owners need to know how to spot it, respond to it and correct it. Perhaps most importantly, employers should focus on preventing it from occurring in the fi st place. Sexual harassment costs money, wastes time, saps productivity, causes damage, and creates avoidable stress for business owners.

Sexual Harassment Defined

Employers first need to understand what sexual harassment is and how it manifests itself in the workplace. “Hostile work environment” sexual harassment is unwelcome conduct that is sexual or gender-based in nature, and that is so severe or pervasive that it creates a hostile working environment. Thus, the conduct—verbal, physical, nonverbal or electronic in nature—must be offensive, uninvited and objectively inappropriate. To recover any damages, it must be so severe or so widespread that it creates intolerable working conditions. Business owners, however, should focus on even just one instance of inappropriate behavior and address it before it becomes a regular occurrence and creates legal liability. Examples of misconduct include a sexual text message being sent from one worker to another, a pat on the buttocks as a cook walks by, a suggestive comment to a server as she bends over, and a remark about how “hot” a worker is as he serves a pepperoni pizza to customers. 

A second type of sexual harassment is known as “quid pro quo”—Latin for “this for that.” This relates to when a supervisor or manager stipulates favorable work conditions or promotions, for example, on sex or sexual favors; or, conversely, when a manager takes an adverse job action (such as termination) against someone who rebuffs a sexual advance. This type is about power and control. 

Almost anyone can be a harasser—man, woman, business owner, manager, non-supervisor or hourly worker. Harassment is not about attraction, and the sexual orientation of the accused and accuser is irrelevant. Statistics reveal that about 16% of sexual harassment charges are filed by men. 

Intent doesn’t matter, either. That is, a “good-natured” sexual joke, for example, can violate an employer’s sexual harassment policy even if the harasser didn’t mean to offend anyone. The conduct is judged by whether a reasonable person in the position of the complaining party would also be bothered. The complaining party can be the person to whom the joke was directed or a bystander, even if the joke-teller didn’t mean for that person to hear it, because the law is intended to protect employees, ensure that they are in a harassment-free work environment, and can work without distraction from sexual-type conduct. 

Laws that address sexual harassment include Title VII of the Civil Rights Act of 1964, as amended in 1991; state statutes that vary by state; and court decisions. Under the federal law, which applies to those business owners with 15 or more workers, employees victimized by sexual harassment can sue in court and receive a jury trial. State laws can apply to employers with a smaller workforce, and may cover even those employers with four or five workers. Victims can recover back pay, front pay, compensatory damages and punitive damages, if they are successful. They can force the business owner to pay all of their attorney’s fees and expenses associated with litigation. Expert-witness testimony about industry standards in prevention and corrective measures is increasingly common. In other words, it is very expensive to litigate, and particularly to lose, a sexual harassment case. 

In fiscal year 2008, the Equal Employment Opportunity Commission (EEOC) recovered $47.4 million in monetary benefits for those aggrieved parties. This does not include money obtained through litigation in the courts. Settlements are often large and unreported.

Policies and Training

Written policies for any business owner covered under the law is essential and, in many cases, required. Laws vary by state, and business owners should be sure to know the law in their state or jurisdiction—and be sure to comply with it. Some states mandate that certain language be included in their policies. In general, however, a sexual harassment policy should contain the following:

• A clear statement of purpose that sexual harassment is prohibited and will not be tolerated.

• A definition of sexual harassment.

• Examples of misconduct that may constitute sexual harassment.

• Notification to employees that engaging in sexual harassment subjects them to discipline, with sanctions that may include termination.

• A description of the company’s internal process for employees who believe they have been subject to sexual harassment, including the persons to whom complaints should be made and the procedure for resolving complaints.

• A statement encouraging complaining parties to come forward.

• Statements advising complaining parties that all good-faith complaints will be investigated promptly and that appropriate action will be taken.

• Assurance that confidentiality will be maintained as much as possible.

• A statement that retaliation is illegal, against company policy and will be treated in the same manner as sexual harassment.

• A guarantee that complaining parties will not be retaliated against for lodging complaints. 

Some states, such as Massachusetts and California, require business owners to list the name and contact information of the EEOC and the state fair employment practices agency, where legal charges can be initiated. Only include this information if the law requires it, as employers are usually best served by handling such complaints internally. 

Policies are almost worthless unless they are communicated to employees in a way so that the employee understands them and knows to comply with them. Maintain the policy in any employee handbook, post it on company bulletin boards, and periodically redistribute it. Training and education (live and by an experienced trainer, preferably), is the best way to teach employees that they need to behave appropriately and what to do if they feel mistreated. Employees often do not understand what conduct may constitute sexual harassment, and this needs to be explained in a way that resonates. Document the training, and retain attendance sheets, course materials, and the policy signed by the attendees indicating that they have read, understood, and agreed to abide by it. Some states, such as Maine and Connecticut, require periodic training. Massachusetts requires that managers receive particular education about sexual harassment. Know the requirements of local laws and comply with them.

Responding to Complaints

If a supervisor, manager or business owner witnesses or hears something that may fall under the sexual harassment policy, he should take action. Speak to the wrongdoer immediately about what was said or done, and advise that it is against policy and cannot happen again. Ensure that those who saw or heard the conduct know that it is unacceptable, violates company policy, and will not be tolerated. Monitor the worker and ensure that the misconduct was an isolated occurrence. 

When a complaint is received, the company is obligated to conduct an investigation. No distinction exists between a “formal” and “informal” complaint—they all count and need not be in writing. Sometimes an investigation is as simple as speaking to the person complaining and the person accused. Other times, it is more risky or complex, and needs the expertise of an outside investigator. The key is to respond promptly and ensure that an appropriate fact-finding mission is conducted. Remedial or corrective action must be taken for substantiated complaints. Retaliation must be guarded against, as it can create additional exposure. 

In sum, understanding the law and engaging in preventative measures is prudent for all employers. That includes having legally compliant written policies, training employees, and responding properly to all complaints. Maintaining a harmonious, harassment-free workplace leads to more satisfied workers, higher retention rates, and greater profitability for the business.

Julie A. Moore is an attorney and founder/president of North Andover, Massachusetts-based Employment Practices Group, a human resources consulting firm. She is a consultant, trainer, investigator and expert witness in workplace matters. She has published extensively, is a frequent speaker at national and regional legal and human resources conferences, and is the chair of the New Hampshire Bar Association’s Labor & Employment Law Section. Her website is employmentpg.com.