Spring Is Here! When Was Your Last Sexual Harassment Training?

Those of us in human resources know that the seasons and the weather do indeed have a strong impact on human behavior. Many has been the time that after my third phone call from a client that begins “You aren’t going to believe this….” Or “I bet I have one you haven’t heard before…” I have walked out of my office and asked my assistant, “Was last night a full moon?” And the answer is almost always “Yes – why do you ask?”

Apparently those in education know this as well. For many years about this time of year, when the dogwoods are budding and the air is crisp in the morning only to be warm and sweet by afternoon, through the halls of A.C. Reynolds High School would echo Principal Ronald L. Dalton’s “The Sap Is Rising” speech. Those of you who went to good old ACR like I did are likely grinning now because it was a very memorable speech. For those of you who are not Reynolds Rockets, the speech was Mr. Dalton’s recognition that like the flowers and trees, romance also tends to bloom in spring. Mr. Dalton would take the opportunity to remind the students of the rules against public displays of affection, fighting in the halls (because in high school, some public displays of affection may lead to fights) and end with the stern warning that anyone who violated the rules would be subject to all sorts of consequences, including the clincher of being denied the opportunity to attend the prom.

Many of us would giggle at Mr. Dalton’s speech every year. But clearly the man was on to something. The effect of spring on new romance does not only apply to high school students. In fact, I have found some of the most outrageous sexual harassment claims I have defended have been as a result of a budding spring romance in the workplace gone awry. So if you have been putting off updating your sexual harassment policy or doing sexual harassment training with your workforce – do it now that spring is here!

As a reminder, your policy against harassment, which should prohibit not only sexual harassment, but harassment based on any protected category, should describe types of harassment and provide at least two clear ways for employees to report harassment. When determining how employees will be directed to report harassment, you should consider not only what will make the employee most comfortable, but also which individuals you can trust to take the correct steps when receiving a report. If an untrustworthy or untrained supervisor receives a complaint and acts inappropriately in response, your company may well be responsible for that supervisor’s actions. Thus determining the appropriate reporting mechanism for employees is of critical importance. Your policy should also prohibit retaliation against individuals who make good faith complaints or participate in investigations. According to a recent ruling from the National Labor Relations Board, if your policy makes promises of complete confidentiality, your policy may be in violation of the National Labor Relations Act. Further, practically speaking, promising complete confidentiality is not a good idea because you simply cannot deliver complete confidentiality in all investigations and all circumstances. Instead, you may consider stating that complaints and investigations will be kept as confidential as possible.

Your sexual harassment policy is one of the most important policies in your handbook. It can provide a complete defense to sexual harassment claims in many circumstances if it meets the requirements developed by courts for the defense. If you have not had legal counsel review your policy lately, you should consider doing so.

While considering your sexual harassment policy, you should also consider whether it is appropriate for your workplace to prohibit or restrict romantic and/or sexual relationships between all employees and/or supervisors and subordinates. The size of your organization, your culture, and other factors will play into whether this type of policy is right for your organization. I suggest that you consult counsel regarding the pros and cons of such a policy in your particular situation.

Sexual harassment training goes hand in hand with your sexual harassment policy. The provision of sexual harassment training to your supervisors and your employees can also be a valuable defense tool in a sexual harassment case brought against your company. Such sexual harassment training should address the definition of harassment, how to prevent it, how to spot it, and how to report it. For supervisors, it should also address how to handle a report of sexual harassment from a subordinate. When providing such training, be certain to have all employees attending sign and date an attendance sheet for documentation purposes should you need it in defending a lawsuit. While you are having your policy reviewed, you may also consider having legal counsel review your sexual harassment training materials. While they can be a great defense tool, if they are inaccurate or incorrect, they can also be used against you.

Many of us change our smoke detector batteries when we set back our clocks or change our air filters when the leaves start to change, add to that list training your employees on sexual harassment when the daffodils bloom – and beware the next full moon on April 25.

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