7 keys to a strong sexual harassment policy

March 25, 2018

As the spotlight continues to grow on workplace sexual harassment, it is more important than ever for medical practices to take the time to review their policies in order to help prevent or defend against sexual harassment claims.

As the spotlight continues to grow on workplace sexual harassment, it is more important than ever for medical practices to take the time to review their policies in order to help prevent or defend against sexual harassment claims.

A comprehensive sexual harassment policy is the first step in preventing sexual harassment issues. Effectively communicating and implementing a strong policy gives employees an understanding of what constitutes sexual harassment in the workplace, the mechanisms for reporting sexual harassment, and the consequences for violating the policy. It is particularly important that employers convey this information to physicians, administrators, or those acting in a supervisory capacity. By outlining the rules and the consequences for violating these policies, employers are better prepared to effectively respond to sexual harassment claims. 

Make a strong statement

Drafting a well-constructed sexual harassment policy begins with employers making a clear statement that sexual harassment will not be tolerated. Taking a strong stance against sexual harassment can help cultivate an understanding by employees that sexual harassment claims will be taken seriously and perpetrators will face sanctions. It also helps foster an environment where victims of sexual harassment are more likely to come forward. 

 

Define the behavior

Another key component of a comprehensive sexual harassment policy includes an easily understandable definition of sexual harassment. This should include the actual definition of harassment-requesting sexual favors in exchange for job benefits and any unwelcome conduct on the basis of sex (or any other protected category such as race, religion, national origin, age, disability or veteran status). 

The policy should provide specific examples of such conduct. Some examples include: (1) requests for sexual favors in exchange for a promotion; (2) unwanted sexual contact (including massaging, hugging, or kissing); (3) sharing sexually inappropriate images or videos; (4) continued or repeated sexual jokes, advances, flirtations, or propositions; (5) telling lewd jokes or sharing sexual anecdotes; and (6) asking sexual questions, including asking questions about someone’s sexual history or sexual orientation.

Moreover, the policy should clarify that these are only examples and that any unwelcome sexual advances that interfere with an individual’s work performance can be considered sexual harassment. 

 

 

Outline reporting procedures

The policy should articulate clear reporting procedures, informing employees of their rights and identifying how to raise sexual harassment issues. These clear procedures increase the chances that sexual harassment claims will be reported, thereby creating more opportunities to resolve complaints quickly and effectively within your organization. Complaint procedures should identify at least two individuals, at various levels of the practice, who can receive complaints (typically human resources staff and a member of management) and specify the contact information for those authorized individuals.

By identifying more than one individual in the policy, practices will better assure employees that they can bypass their immediate supervisor, who may be the perpetrator, when reporting a sexual harassment claim. For smaller medical practices, although it may be challenging to identify two individuals who can receive complaints, the most important consideration is to make certain that a potential victim would have a mechanism to bypass a supervisor when deciding to file a complaint, particularly if the complaint is about a supervisor. Potential options may be designating an office administrator as the recipient for complaints, or contracting with an outside firm for those services.   

 

Provide a safe, confidential platform

To further encourage reporting, the policy should provide anti-retaliation assurances to employees. This requires an explicit statement by the employer that retaliation against a complainant will not be tolerated and such behavior will be subject to disciplinary action.

Additionally, a strong sexual harassment policy should include a confidentiality statement. While confidentiality cannot be guaranteed because of the requirement to investigate the claim, the employer can explain that information related to the claim will be shared only on an as-needed basis.

 

 

Explain the investigation process

A comprehensive sexual harassment policy should also outline the investigation process. The policy should make clear that all complaints will be promptly and thoroughly investigated, and explain that unacceptable conduct will be treated seriously and that perpetrators may face a range of sanctions-from reassignment to termination.

A policy can also include an explanation that, based on the findings in an investigation, the severity of the conduct will determine the level of corrective action taken. 

Document receipt

Keep in mind that these guidelines outline the important minimum requirements for drafting and implementing an effective sexual harassment policy. Practices can provide even greater protections to their employees against harassment, discrimination, and unwelcome behavior in the workplace, which may further guard against unlawful harassment and also increase employees’ satisfaction and confidence in having a safe, productive work environment.

Once your policy is drafted and finalized, it is important to distribute the written policy to all employees and provide policy training to all staff. Upon receipt of the policy, employees should provide a written acknowledgment that they have received, read, and understand the policy. 

A copy of the acknowledgement receipt should be maintained in their personnel files. Current copies of the policy should be on file with the human resources department and available to employees upon request.

Get additional help

For questions on how to draft and implement a sexual harassment policy for your organization, contact an attorney who is familiar with employment discrimination issues for assistance. In an environment where policies and management are under increased scrutiny, it is important for an organization to do all it can to ensure its sexual harassment policy is comprehensive and effective. Remember, when it comes to preventing and defending sexual harassment claims, your policy is key. 

 

Jennifer Lee-Cota, JD, is an associate with the Lewis Roca Rothgerber Christie LLP Litigation Practice, representing clients in legal matters involving sexual harassment claims and contractual disputes.

 

Kirstin Story, JD, is an employment attorney with the Lewis Roca Rothgerber Christie LLP Litigation Practice, advising and representing clients on issues and disputes related to state and federal employment law, including Title VII, the Arizona Civil Rights Act, the Americans with Disabilities Act, the Family Medical Leave Act, and whistleblower protection.