Sexual harassment in workplace is governed by the Sex Discrimination Ordinance (SDO).
In addition to sexual harassment, other types of harassment have also been found to violate the law. Employees who are harassed because of their disabilities may have a claim under the Disability Discrimination Ordinance.
Types of Sexual Harassment
Employers have an affirmative duty to maintain a workplace free of harassment, including sexual harassment, but are not strictly liable for harassment. Liability depends on what the employer has done to prevent harassment and the remedial measures taken after harassment occurs. An employer's liability will depend upon the facts and circumstances surrounding each claim. The concept of sexual harassment gives rise to two types of unlawful sexual harassment:
When an employee risks losing or not receiving some tangible job benefit based on whether the employee accepts unwelcome sexual advances.
When the working environment is oppressive to an employee because of the actions of coworkers, supervisors or customers.
The SDO has its own definition of sexual harassment. The SDO definition includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.
Duties of Employers
Employers have a duty to take all necessary steps to prevent sexual harassment and other forms of illegal harassment. This includes affirmatively raising the subject of sexual harassment with management and employees, expressing strong disapproval of it, developing appropriate sanctions for it, informing employees of their rights under the law and sensitizing employees to the problem of harassment. The mere fact that an employer has a policy against harassment in the workplace is not enough. The policy must be communicated to employees, and then management must act to eliminate the harassment when it occurs. When sexual harassment is discovered, effective corrective action must be taken swiftly and decisively by the employer. Effective corrective action restores the victim to a "non-harassed" state, and prevents the misconduct from recurring.
Steps to Prevent Claims
To help ensure your company is not subjected to a claim of sexual harassment, the following steps are recommended:
Establish a clear non-discrimination policy that makes all forms of harassment, including sexual harassment, unacceptable in the workplace. This policy should be regularly reviewed and updated, and disseminated to all current and newly hired employees
Establish a grievance procedure so that employees understand how to bring complaints of harassment to the surface. Make sure than anyone who is alleged to have directly or indirectly participated in the harassment is not involved in the grievance procedure.
The grievance procedure should protect the confidentiality of both the alleged victim and the harasser. It may also be appropriate to provide for a process of appealing the decision of the initial grievance mechanism to some higher management authority.
Fully investigate any allegation of sexual harassment, or any situation where you believe harassment may have occurred. Document the steps taken in your investigation and conclusions that no harassment occurred.
If no disciplinary action is deemed appropriate after the investigation, at a minimum, reestablish a policy against harassment and demonstrate disapproval.
If corrective action is deemed necessary, make sure that it is full and complete and ends the misconduct. Follow-up on the results of the corrective action should be continued until it is clear that the misconduct has been eliminated.
The law on all forms of harassment is sure to evolve over time. Consult your lawyer to make sure that your company manuals, policies, guidelines and practices are adequate to avoid claims of harassment.
Remember that it is not enough just to have these policies, they must be vigorously enforced by management to be meaningful under the law.