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Small Business Employment Law: A Guide to Investigating Sexual Harassment Claims

November 25, 2021

Sexual harassment is common in American workplaces. According to reports, five million individuals have been harassed in offices across the country annually. While this figure is alarming, the consequences for sexual harassment charges from employees are even more grave.

As such, you want to make sure your small business has measures to prevent sexual harassment around the office and deal with any claims that may arise. On that note, this article provides a comprehensive guide on dealing with sexual harassment cases around the office to avoid damages, liability, and Title VII lawsuits.

What Is Sexual Harassment?

Sexual harassment involves any unwelcome or inappropriate sexual advance or behavior exhibited towards an employee, employer, or client that has the potential to affect their employment (in the case of a staff member) if accepted or rejected, interferes with their performance, or makes them work environment hostile.

However, besides the obvious cases like company executives requesting sex from a junior staff member for a promotion, sexual harassment can also occur in several not-so-obvious scenarios.

For example, staff at a company may feel uncomfortable due to senior managers who are fond of sexually explicit jokes or one employee sending emails or IMs to coworkers that contain inappropriate sexual content.

That said, there are a couple of things you should know about sexual harassment, such as:

  • The victim doesn’t have to be a woman; men get sexually harassed in workplaces too
  • The offender isn’t always the opposite sex, as men throw unwelcome sexual advances at other men, and women do the same
  • The guilty party mustn’t be a staff; customers can sexually harass company employees
  • The victim can be a client or someone visiting the office
  • Sexual harassment can happen without the offender ( if they’re a senior staff) threatening the employee’s job

How to Prevent Sexual Harassment In The Office?

US Federal laws prohibit inappropriate sexual conduct towards employees, employers, or anyone else around the office. Title VII of the Civil Rights Act is the primary statute that provides guidelines on sexual harassment prohibition in the United States.

Therefore, with the law against it, you must create a work environment where sexual harassment can’t occur. But how do you do this? Let’s take a look:

  • Have a Sexual Harassment Policy

The first step to preventing sexual harassment in the workplace is to have specific regulations surrounding the subject. Consider having these company laws in a print and digital document and make them available to every employee.

These guidelines should define sexual harassment, state punishments or disciplinary measures for offenders, spell out procedures for filing sexual harassment claims, communicate the company’s commitments to investigating sexual harassment claims alongside specific investigative actions, and prohibit retaliation against employees who lodge sexual harassment complaints.

  • Conduct Annual Educative Training

It’d help if you train employees regularly on sexual harassment and its consequences in the office. These training sessions can occur bi-annually or annually. They should also involve reading out the company handbook on sexual harassment.

  • Conduct Separate Training Sessions for Managers and Senior Executives

Most sexual harassment complaints are usually against company executives; as such, you must hold separate meetings on sexual harassment with your senior staff. Emphasize clearly what sexual harassment is, the behaviors that constitute it, and the repercussions of such actions.

It’d be best to also educate senior managers on handling sexual harassment claims from employees since they’re typically the first point of contact in such scenarios.

How to Investigate Sexual Harassment Claims

Investigating sexual harassment cases is a complex issue, and you want to make sure your company doesn’t make any missteps in handling these claims.

That said, the Equal Employment Opportunity Commission’s (EEOC) guidelines on conducting an inquiry into sexual harassment complaints advise that employees consider all the facts surrounding the situation, including the nature of the inappropriate sexual behavior and the context in which the events took place.

With that in mind, here are some tips on handling sexual harassment cases:

  • Treat All Claims With Urgency

It’s vital to treat sexual harassment allegations as a priority. Whenever an employee comes forward with a claim, ensure they know that the company will take deliberate steps to look into the matter and get justice.

  • Interview Both Parties

After receiving the victim’s complaints, interview both parties separately to get the full details of what happened. Make sure you ask for specifics, such as date, time, the nature of the sexually inappropriate behavior, and witnesses.

You should also hold talks with witnesses and corroborate their accounts with the parties involved. Document each of these discussions, as well. Finally, discuss the company’s steps during and after the investigation with the affected individuals.

  • Treat Both Parties With Respect

During the investigations, ensure you don’t discriminate against the victim. Doing this puts you at risk of a lawsuit that could be damaging for the business. Also, assure the harassed employee of their safety and ensure no other staff abuses them as retaliation during or after the investigations.

Furthermore, accord the same respect to the offender as well. Remember, they’re innocent until proven guilty; as such, don’t discriminate against them in any way. However, we recommend sending them on leave or transfer during the investigations to protect the victim.

  • Review the Result of the Investigation and Take Appropriate Action

After the inquiry, review the information gathered and decide the next step to take. The result should determine the disciplinary measure to take towards the offender or victim.

At this point, it’s vital to mention that you should probably work with your HR department or a specialized company committee for sexual harassment cases to review the investigation and make a decision.

Also, once you’ve decided on what to do, let each party know immediately.

Hire a Competent Employment Lawyer

Sexual harassment claims are serious issues that could lead to a lawsuit if you’re not careful. As such, you’ll probably need legal help to navigate these cases professionally and avoid any damaging actions.

An employment lawyer is your best bet in this regard. However, finding an experienced attorney might be a bit challenging. That said, if you’re struggling to find a lawyer to handle a sexual harassment claim in your company, we recommend you reach out to The Law Office of Sheri Oluyemi, LLC. With years of experience in employment law, we can help you navigate sexual harassment cases in your firm and get justice served.

Sexual Harassment In the Workplace: Steps for SMBs to Avoid Liability Under Title VII

November 4, 2021

When an employee comes forward with a sexual harassment claim, they expect their employers to respond constructively to get justice served. However, several small business company executives often dismiss these cases, with little or nothing done to find a resolution.

And when senior managers ignore sexual harassment complaints in this manner, the following line of action for the victim is a costly and lengthy lawsuit.

Title VII of the Civil Rights Act prohibits discrimination or harassment of any sort; thus, any litigation against your business will have you facing the law in its full wrath.

As a business owner, you want to avoid this scenario; as such, you should address sexual harassment in your workplace even before it rears its head. With that in mind, we provide you with some helpful tips to prevent sexual harassment in your business.

How to Address Sexual Harassment as a Small or Medium-sized Business

Sexual harassment cases are challenging to handle. Here are some constructive ways to deal with sexual harassment in the office:

  1. Set Internal Policies and Regulations

When there are no rules guiding employee conduct in your company, your staff can exhibit any form of inappropriate behavior because they feel anything goes. Thus, you need company policies and rules that define acceptable conduct within the office premises and prohibits sexual harassment or any discriminatory behavior. These corporate laws should also specify the consequences of harassing employees or clients sexually.

You should also have these regulations in print and ensure every employee has them, regardless of their role. New employees must get a copy immediately after employment, and you’ll need to have extensive training sessions with them on how workers should relate with and treat each other. Existing staff members should also receive regular training to re-emphasize the company’s stance on sexual harassment and the repercussions of such behavior.

1 Enforce the Rules

Don’t make laws and throw them out the window when the time comes to enforce them. Ensure you take every sexual harassment allegation in your company seriously, regardless of whether the offender is a senior staff or a junior employee.

Set up an HR committee or department to investigate these claims and take appropriate action when you discover the truth. When you show zero tolerance to sexually inappropriate behavior in the workplace, your employees will conform to their attitudes accordingly.

2 Cultivate a Work Environment of Respect and Equality

While sexual harassment isn’t gender-neutral, we can all agree that women are victims of sexually inappropriate behavior more than men. As such, it’s vital to establish a work environment where everyone is respected, regardless of gender.

Ensure that every staff member receives equal treatment and has the same opportunities to thrive. It’d help if you also addressed gender-limiting biases head-on.

For example, some stereotypes that define women sexually according to what they wear or their race play significant roles in the high rate of sexual harassment towards the feminine gender.

It would be best to ensure these prejudiced views aren’t found in your firm. You shouldn’t even tolerate them as workplace banter. Men also face some of these biases, so they shouldn’t be left out of the conversation.

Furthermore, there should be consequences whenever an employee is disrespected in any way.

3 Empower Your Employees

Often, the victims of sexual harassment face discrimination and abuse whenever they come forward, even from coworkers who should know better and treat them with empathy. On that note, ensure to create a work environment where your staff members can speak up without retaliation from anyone, including their offenders.

Make your staff know that they can trust the company to act in their best interest whenever they’re victims of any form of discrimination, regardless of their gender or social status. With so many sexual harassment cases swept under the carpet, your company should stand out and make a difference.

Conclusion

Sexual harassment is still prevalent in American workplaces, despite having more media coverage with several conversations to see victims get justice. That said, if you’re battling with a sexual harassment case in your workplace or would like to take proactive measures to prevent them, we recommend you seek legal representation to help you out. Reach out to us today at The Law Office of Sheri Oluyemi, and let’s bring our extensive experience in employment law to your aid.

Does Title VII Include Discrimination Based on Sexual Orientation?

May 23, 2019

By Hauwa Adamu

In Bostock v Clayton County and Evans v Georgia Regional Hospital, the US Court of Appeals for the Eleventh Circuit held that reliance on Title VII of the Civil Rights Act of 1964 as prohibiting discrimination on the basis of sexual orientation failed to state a claim recognizable under law. 

Background

Evans v Georgia Regional Hospital

Jameka Evans worked at the Hospital as a Security Officer from August 2012 to October 11, 2013. During her time at the Hospital, she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a “traditional womanly” manner. She experienced a hostile work environment. She was denied equal pay or work, harassed and physically assaulted.

Although she was a gay woman, she did not broadcast her sexuality. However, it was evident that she identified with the male gender, because of how she represented herself. Evans was punished because her status as a gay female did not comport with the Hospital’s gender stereotypes.

Evans lodged a complaint with the Human Resource department about some adverse treatment at work. Shortly thereafter she also complained that she was harassed and retaliated against because of her complaint. HR indicated that the Hospital had investigated Evans’ complaint, and had found no evidence that she had been singled out or targeted. Evans voluntarily resigned.

Bostock v Clayton County

Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare service coordinator in 2003. During his 10-year tenure at Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. 

During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed as part of his job.

Shortly after, Clayton County terminated Bostock allegedly for conduct unbecoming of its employees. Bostock filed a charge of discrimination with EEOC following which, he filed a pro se lawsuit against the County alleging discrimination based on sexual orientation, in violation of Title VII.

The Courts

In Evans, at the United States District Court for the Southern District of Georgia, Magistrate judge Smith issued a report and recommendation (R&R) dismissing Evans Complaint for failure to state a claim. The Judge concluded that while same-sex harassment can be actionable under Title VII, Title VII discrimination claims based upon the plaintiff’s sexual orientation or perceived sexual orientation is not. Judge Randall Hall concurred with Judge Smith’s R&R and dismissed Evan’s case. 

The Eleventh Circuit Court of Appeals rejected Evans request for an en banc rehearing, stating that Evans’ pro se Complaint failed to plead facts sufficient to create a plausible inference that she suffered discrimination. It stated: “Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.” 

Evans then filed a petition for certiorari, requesting review from the SCOTUS. Regardless of the fact that several friends-of-the-court briefs were filed urging the SCOTUS to hear the case, including briefs from 79 businesses and organizations, the Court denied review of the case, leaving for another day resolution on whether Title VII prohibits discrimination based on sexual orientation.

In Bostock, the US District Court for the Northern District of Georgia and the Eleventh Circuit Court of Appeals dismissed the case in the same grounds.

After more than nine conferences during which the US Supreme Court could have acted on the petition for review, the SCOTUS has granted review in this case and two others that concern anti-LGBTQ employment discrimination. The cases will be heard in the Court’s 2019-2020 term to create a binding precedent and decide the issue for all courts.

My EEOC Charge is 1 in 90,000 – EEOC Fiscal Year 2018 Enforcement and Litigation Data

April 18, 2019

On April 10, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns of its work in fiscal year 2018 which ended on September 30, 2018. You can find details on its website but some remarkable statistics are as follows:

  • Received 76,418 charges of workplace discrimination

  • Resolved 90,558 charges of discrimination (including those filed in prior years)

  • Secured $505 million for victims in private sector, state and local government, and federal workplaces

  • Handled over 519,000 calls to its toll-free number, 34,600 emails and more than 200,000 inquiries in field offices

  • Filed 199 merits lawsuits alleging discrimination, including 117 individual suits and 45 suits involving multiple victims or discrimin­atory policies and 37 systemic discrimination cases

  • Achieved a successful outcome in 95.7 percent of all district court resolutions

Often, people inquire whether the #MeToo movement spurred more legal disputes. EEOC data demonstrates this was indeed the case. The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment.

However, leading the pack as the most frequently alleged basis of discrimination with 51.6% of all charges filed, was “retaliation”, followed by “sex”, then “disability” then “race”, then “age”.

Protected Status + Adverse Employment Action = Discrimination?

April 14, 2018

Often employees are convinced they are victims of discrimination at the hands of employers, through its management or supervisory staff. Often, certain issues are also clear including the employee’s membership in a protected category: Black, female, Muslim, pregnant, for instance, and the employee having experienced a specific adverse employment decision such as dismissal, failure to promote, under compensation, etc. However, it is rarely ever crystal clear that an employee can link the protected category to the adverse decision. Essentially, the employee must clearly answer the question: why, exactly, is this happening to me?

A recent decision from the Eleventh Circuit Court of Appeals which applies to Georgia, Florida and Alabama gives us a good example of the everyday behaviors at the workplace capable of answering this question: “why”.

In EEOC v Exel, the Court upheld a jury verdict awarding back pay on the finding that an employer’s policy of hiring current employees over external candidates was pretextual for sex discrimination. First, the Court accepted evidence that the policy was not mandatory nor was it uniformly applied. Thus, even though neutral on its face, the policy could be bypasssed and used as a cover for other nefarious hiring decisions. Next, the Court identified such nefarious bias (in this case it was against a woman), in the following actions of the hiring manager:

  • “limited his contact with pretty much all the females in [the] office”

  • asked another to “manage the ladies in the office.”

  • was “standoffish” with female employees

  • treated female employees differently than male employees

  • would come into work in the morning and “go straight to his office..”

  • “…wouldn’t speak to any of [the female employees].”

  • stated several times “that he would never put a woman in a management position”

The Court found this evidence is to be “sufficient to tie “generalized discriminatory behavior to the specific employment decision at issue.””

For employers, this case warns of the use of a preferential policy, even though apparently neutral, could be problematic in its day-to-day application.

For employees who think they are being discriminated against, this case gives an example of the sort of evidence required to be successful at trial.

Discrimination 101

November 30, 2017

Recently there have been a number of significant decisions regarding discrimination in the workplace highlighting the fact that preventing discrimination is a responsibility of every employer. Employers who fail to meet this challenge by failing to take all reasonable steps to prevent discrimination can be held directly responsible for discrimination or vicariously liable for the actions of their employees.

What constitutes discrimination has varied by court or even by judge; however, the law is clear that employers should ensure that they do not discriminate (or allow their employees to discriminate) on the basis of the following:

  • Race
  • Nationality
  • Sex
  • Religion
  • Age
  • Disability
  • Political affiliation
  • Marital status
  • Pregnancy
  • Gender/Gender identity/Gender orientation
  • Creed

This is not an exhaustive list depending on your jurisdiction (federal, state, municipal etc.) but it covers most of the basics.

For example, in a recent case, a major rail network was held vicariously liable for the actions of its employees who had sexually harassed a female manager. The manager was subjected to having graffiti of a “particularly graphic and highly offensive nature” written about her in the men’s bathroom at work. In a further incident, a pornographic magazine was pushed under the door of her office. The female manager successfully obtained a large monetary award as a token of the employer’s failures.

Employers will be held accountable for failing to take all reasonable steps to prevent discrimination and harassment in their workplace and to address complaint of discrimination and harassment quickly and confidentially. Some of the steps that employers should take to prevent harassment and discrimination are:

  • Having comprehensive anti-discrimination policies that are committed to by all workplace stakeholders (owners, operators, managers, directors, employees and contractors)
  • Having a grievance resolution procedure that is clear and concise
  • Providing information to your employee of where they can go to get assistance outside of your workplace
  • Training all employees on what is discrimination and harassment, and what behaviors are prohibited
  • Ensuring all managers are trained on how to appropriately investigate and handle complaints
  • Making discrimination and harassment a feature of discussion at staff meetings
  • Displaying posters and notices that clearly state that harassment and discrimination will not be tolerated

#metoo movement – Sexual Harassment and Discrimination at Work

November 30, 2017

In a world where publicizing the intimacy of what goes on behind closed doors is both easy and pervasive, employers are urged to audit their anti-harassment processes and employees are encouraged to come forward if they have experienced or are experiencing sexual harassment at work.

The U.S. Equal Employment Opportunity Commission enforces federal equal employment opportunity (EEO) laws, which strive to create harassment-free workplaces by ensuring that employers fulfil their duties under federal legislation, including Title VII of the Civil Rights Act. Among a vast array of other things, these laws require that:

  • Employers do not condone sexual harassment in hiring, firing, compensation, promotion, layoff, recruitment, training, benefits, etc.
  • Employers do post notices visible to all employees outlining their rights under EEO laws

Sexual harassment is offensive behavior towards someone based on their gender, sexual orientation or sex. Harassment can be a wide range of actions. For instance, bullying, whether physical, verbal or nonverbal; targeted pestering; stalking; antagonistic teasing; name calling; damage to person or property; threatening or derogatory comments. Add sexual assault, including unwanted indecent touching and rape; lewd gestures and exposure. These all fit under the harassment umbrella. Unwelcome sexual advances, request of sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment
  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual
  • Such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment

Although most people thing of sexual harassment as something that happens only to women, men can be sexually harassed as well.

Clients have reported that being sexually harassed can devastate the victim’s psychological health, physical well-being and vocational development. Women who have been harassed often change their jobs, career goals, job assignments or educational pursuits. In addition, women have reported psychological and physical reactions to being harassed that are similar to reactions to other forms of stress and abuse.

Sexual harassment, especially in the workplace has gained increasing recognition in every society, causing employers to wake up to the potential of it going on amongst co-workers, supervisors and subordinates.

Employers: audit your policies now, revise them as necessary, implement them uniformly across genders and treat every case seriously.

Employees: it can be scary to say #metoo; however, it is important that you let someone know about your difficulties before it goes too far, or before someone suffers the same abuse.

Assessment Tool: Discrimination in Employment

October 25, 2017

So you think you have a discrimination claim against your employer? Hold that thought. Your answers to the following questions might indicate otherwise.

  1. Have you suffered an adverse employment-related action such as a refusal to hire, verbal or written infraction, refusal to promote, demotion, denial of benefits, suspension or dismissal?
  2. Do you have evidence that the adverse employment-related action which you have suffered was taken by the employer because of the protected class (your race, sex, religion, national origin, age, disability, veteran or active military status) to which you belong?
  3. If the employer has provided reasons for the adverse employment-related action, do you have evidence that those reasons are false?