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Preventing Workplace Harassment

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Hollywood’s high-profile and highly publicized scandals are having a transformative effect on the country’s attitude toward harassment, and business owners need to pay attention to the evolving dialogue, advises Dan Eaton, a partner in the litigation department of Seltzer Caplan McMahon Vitek in San Diego.

“You shouldn’t put your head in the sand,” he emphasizes. “We’re in a sexual harassment moment in this country right now, and it’s affecting employers across all sizes and industries.”

Bettina Deynes, vice president of human resources and diversity, Society for Human Resource Management, Alexandria, VA, agrees, advising HVAC owners and managers to create, enact, and enforce a strong, comprehensive anti-harassment policy with the words ‘zero tolerance’ in it.

“Don’t wait until a complaint is filed,” she urges. “The process should be in place and publicized before an investigation is necessary. That’s very important.”

The policy should also provide a general description of actions that cross the line, according to Eaton. He indicates that examples of sexual harassing behavior could include inappropriate sharing of sexual material or asking for sexual favors in exchange for job advantages.

“Everybody needs to understand what harassment is, and that it is not ok,” Deynes says. “For example, if a coworker gives you a compliment about what you are wearing today, that is not harassment.”

Air Force One, a commercial HVAC company headquartered in Dublin, OH, actually has two separate policies: one a non-harassment policy and another specific to sexual harassment, according to Greg Benua, director of human resources. “We go over them in orientation and have everybody sign off that they have received those policies,” he says.

The non-harassment policy prohibits “intentional and unintentional harassment of any individual by another person on the basis of any protected classification including, but not limited to, race, color, national origin, disability, religion, marital status, veteran status, sexual orientation or age.”
The second policy, which prohibits sexual harassment by a supervisor, associate, customer, or vendor on the basis of sex or gender, provides examples of prohibited behavior that include “unwelcome sexual advances, requests for sexual favors, obscene gestures, displaying sexually graphic magazines, calendars or posters, sending sexually explicit e-mails, text messages and other verbal or physical conduct of a sexual nature, such as uninvited touching of a sexual nature or sexually related comments.”

This policy continues: “Depending upon the circumstances, improper conduct also can include sexual joking, vulgar or offensive conversation or jokes, commenting about an associate’s physical appearance, conversation about an associate’s own or someone else’s sex life, or teasing or other conduct directed toward a person because of his or her gender which is sufficiently severe or pervasive to create an unprofessional and hostile working environment.”

Best Practices to Follow

Experts agree that HVAC and other small business owners need to take immediate steps to guard against harassment in the workplace. Some of those steps include:

Offer training. “In California, employers with 50 or more employees are required to give training to supervisors within six months of becoming supervisors and every two years to all supervisors in the workplace,” Eaton says. “Smaller employers are free to conduct such training—and should—because it shows a proactivity to address sexual harassment and keep it from occurring.”

Deynes points out that attendance should be mandatory for everyone. “No one is exempt from this training, especially senior management,” she insists.
Benua is in the process of planning annual training for both managers and employees of Air Force One. Because the company has 175 employees in five locations, he is currently leaning toward online training.

Develop a clear and accessible complaint process. “Preventing harassment starts with making people aware that there is an avenue to complain and making them aware of their right,” Eaton says. “That kind of information enables everyone involved in the organization, whether large or small, to feel a sense of protection in asserting their rights.”

Associates who believe they are victims should have multiple contacts for reporting harassment, Benua says. “If you just say, ‘Go to your supervisor,’ what if your supervisor is doing the harassing?” He indicates HR is a good secondary option for reporting.

The number one reason why people don’t come forward is because “they are afraid they will not be believed or that it will have negative repercussions,” Deynes says. “Some are just embarrassed.”

She often hears comments such as, “For months, I endured unwanted attention.” When she asks if the employee ever told the coworker he or she did not appreciate the attention, the response is usually something like, “No, I held back. I tried to take it as a joke.”

Her advice: “The first time it happens, you should cut it off, and it should never happen again.”

Investigate complaints. Depending on the nature of the complaint, Eaton suggests hiring an outside contractor to conduct an investigation, rather than handling it internally. “A small operation is focused on running the business, and an investigation can be a monstrous distraction,” he explains.

“An outside contractor can find the facts and provide a recommendation so the employer can take appropriate action.”

If you prefer to keep it internal, human resource professionals usually have training and experience in this area, says Deynes, who has helped with many investigations, some of which involve one person’s word against another. “We live in an era of social media, electronic emails, and text messages,” she explains, “making it easier to determine whether there has been an incident of harassment.”

Punish wrongdoing. “When a complaint is filed and a formal investigation reveals that wrongdoing has occurred, disciplinary action must be taken immediately against the guilty party,” she emphasizes. “Senior management or so-called critical employees are not exempt from disciplinary action or employment termination. Excusing this conduct for certain employees makes the policy useless and sends the message that, in spite of the policy, harassing is ok for some.”

Consequences can range from a written reprimand to leave without pay, a demotion, or even termination, according to Eaton. “It’s not enough to give somebody a wrist slap if they have engaged in sexual harassment. You have to take action that is proportional to what happened.”

Include protected classes. Policies should not be limited to sexual harassment. “An anti-harassment policy should cover both sexual harassment and harassment based on any other protected class status, specifying that all forms of harassment are prohibited, regardless of whether they result in a lawful act,” Deynes says.

Each state has a unique group of classifications, such as race and disability, that are protected from harassment “so every employer needs to pay attention to their own states,” she says. “Let’s be clear: It’s not just women. Anybody can be harassed. We need to do a better job of reassuring and providing everyone with a workplace that is free of this type of behavior.”

Purchase insurance. “Sexual harassment or harassment based on a protected classification can be very expensive,” says Eaton, who teaches classes in business ethics and employment law at San Diego State University. He believes HVAC contractors should consider employment practices liability insurance, which specifically provides a defense for these types of claims. He adds that comprehensive general liability insurance does not provide coverage for harassment claims.

Communicate. Deynes recommends publishing short articles and references periodically in newsletters, employee communications, and bulletin boards on harassment and its detrimental effect on people and organizations.

In addition to spelling out the policy in an employee communications, Eaton suggests that HVAC contractors talk about their harassment policies. “To ensure a comfortable working environment, check in with employees occasionally to find out if there are any problems,” he says. “You don’t have to ask, ‘Have you been sexually harassed today.’ I’m talking about periodically asking them if there are any problems they would like to bring to your attention.”

Margo Vanover Porter
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