The U.S. Equal Employment Opportunity Commission (EEOC) says that it’s unlawful to harass a person (either an applicant or employee) because of that person's sex. Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. This can include offensive remarks about a person's sex.
It's important to note that both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Also, the harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who’s not an employee of the employer, like a client or customer.
While the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren’t serious, harassment is illegal when it’s so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision, like the victim being fired or demoted.
New York Employers
Every employer in the New York State is required to adopt a sexual harassment prevention policy. An employer that does not adopt the model policy must ensure that the policy that they adopt meets or exceeds the following minimum standards.
Any employee, paid or unpaid intern or non-employee who’s been subjected to behavior that may constitute sexual harassment is encouraged to report such behavior to a supervisor, manager or human resources contact. Likewise, anyone who witnesses or becomes aware of potential instances of sexual harassment should report such behavior.
Supervisors and managers who receive a complaint or information about suspected sexual harassment, observe what may be sexually harassing behavior, or for any reason suspect that sexual harassment is happening, must report such suspected sexual harassment to a supervisor, manager or human resources contact.
In addition to being subject to discipline if they engaged in sexually harassing conduct themselves, supervisors and managers will be subject to discipline for failing to report any suspected sexual harassment or otherwise knowingly allowing sexual harassment to continue.
Further, supervisors and managers will also be subject to discipline for engaging in any retaliation. Unlawful retaliation is any action that would prevent a worker from coming forward to make or support a sexual harassment claim. The adverse action doesn’t need to be job-related or occur in the workplace to constitute unlawful retaliation.
Sexual Harassment Complaints and Investigation
All complaints or information about suspected sexual harassment must be investigated, and the investigations must be conducted in a timely manner, and will be confidential to the extent possible. To that end, an investigation of any complaint, information, or knowledge of suspected sexual harassment must be prompt and thorough, and should be completed within 30 days.
Any employee may be required to cooperate in an investigation of suspected sexual harassment; however, an employees who participate in an investigation won’t be retaliated against.
Investigations should be done in the following steps:
- Upon receipt of complaint, the designated investigating officer will conduct an immediate review of the allegations and take any interim actions, as appropriate;
- If documents, emails, or phone records are relevant to the allegations, the investigating officer will take steps to obtain and preserve them;
- The investigating officer will request and review all relevant documents, including all electronic communications;
- The investigating officer will interview all parties involved, including any relevant witnesses;
- The investigating officer will create a written documentation of the investigation (such as a letter, memo or email), that contains the following:
- A list of all documents reviewed with a detailed summary of relevant documents;
- A list of names of those interviewed with a detailed summary of their statements;
- A timeline of events;
- A summary of prior relevant incidents; and
- The final resolution of the complaint, together with any corrective actions action(s).
- The investigating officer will retain the written documentation and associated documents in the employer’s records;
- The investigating officer will promptly notify the complainant and the individual(s) who responded of the final determination and implement any corrective actions identified in the written document; and
- The investigating officer will then inform the complainant of their right to file a complaint or charge externally.
In addition to an employer’s internal process, employees may also choose to pursue legal remedies at any time with New York State Division of Human Rights (DHR) or the United States Equal Employment Opportunity Commission (EEOC).
If your business has not adopted a Sexual Harassment Prevention policy, or if you haven’t conducted the required training for your employees in the past year, contact us immediately so we can help you get into compliance.
Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving entrepreneurs, start-ups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.