United States: Time's Up, Florida: Creating Workplaces Free From Sexual Harassment And Retaliation

Last Updated: July 19 2018
Article by Brett Owens

In 2017, nearly 9% of all Equal Employment Opportunity Commission (EEOC) charges of discrimination alleging sexual harassment were from employees working in Florida. Only one other state had a higher percentage of EEOC Charges alleging sexual harassment. Florida is not only the third largest state, but it's also home to a large number of retail and hospitality establishments, which are industries that, unfortunately, struggle with these claims. From 2006 to 2016, the hospitality and food service industry accounted for the greatest share of sexual harassment claims.

All employers in Florida should take the time to review their policies and procedures to ensure they have created a workplace that bars harassment of any kind, offers flexible reporting procedures, and that company leaders have a plan in place to conduct legally compliant investigations of harassment claims.

Every employer should also take time to create a workplace environment that encourages employees to report violations of their employer's policies and procedures without the fear of retaliation. In 2017, 48% of Charges of Discrimination filed with the EEOC included a claim of retaliation. Employees filing Charges of Discrimination alleging sexual harassment often include a claim for retaliation and allege that when they complained of illegal conduct they suffered an adverse employment action.

Business owners must provide a workplace free of harassment, but also an open and respectful workplace culture that allows for employees to safely come forward to report issues. This can be accomplished, in part, by creating policies that guarantee employees will not face retaliation as a result of reporting behavior that is in violation of their employer's policies and procedures. Companies should also focus on properly documenting the performance of every employee. In the event of a retaliation claim, the employer will likely be required to demonstrate a legitimate non-retaliatory reason for an alleged adverse employment action, and will likely rely upon performance evaluations and disciplinary records. Consequently, thorough and detailed performance evaluations not only assist the employee by providing feedback, but also can provide a basis for demonstrating why an adverse employment action was taken by the employer.

Employers have a legal obligation to maintain a workplace that is free of sexual harassment and retaliation, and should be motivated to create an environment where every employee and customer feels safe and respected. The failure to provide a harassment-free workplace may result in employee turnover, less productivity, and decreased employee morale.

Ultimately, every employer needs to demonstrate that they have procedures in place to prevent and respond to complaints of sexual harassment, whether they come from customers or co-workers. Adequate remedial action must occur upon receiving notice of potential sexual harassment in the workplace.

According to the EEOC, an anti-harassment policy and complaint procedure should contain, at a minimum, the following elements:

  • A clear explanation of prohibited conduct.
  • Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation.
  • A clearly described complaint process that provides accessible avenues of complaint.
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.
  • A complaint process that provides a prompt, thorough, and impartial investigation.
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Companies must be proactive and should include anti-harassment policies training during the onboarding process for each new hire. From the onset of employment it should be made clear to every employee that sexual harassment is unacceptable in the workplace and that the company does not retaliate against anyone who notifies the company of potential harassment. Each employee should acknowledge in writing that he or she has reviewed and understands the sexual harassment policy. It is imperative to stress that all employees exercise good judgment to avoid engaging in conduct that may be perceived as harassment. The anti-harassment policy should also state that supervisors and managers do not have the authority to harass employees.

A policy that is not implemented through communication, education, training, and consistent enforcement is ineffective. Each manager and supervisor must be able to identify behavior that violates company policy and reinforce that sexual harassment will not be tolerated. Additionally, every job description for managers and supervisors should include requirements regarding knowledge and proper enforcement of the anti-harassment policies and procedures. Employers should also remember that nonemployees, such as customers, vendors and guests, could also create a hostile work environment for employees.

It is important that procedures for reporting harassment are flexible. The complaint process is not effective if employees are required to complain to their supervisors about alleged harassment because the supervisor may be the harasser or may be friends with the harasser.

Thus, it is essential to set up procedures for a swift, robust, and impartial investigation. A fact-finding investigation should be initiated immediately. An employer may need to take intermediate measures before completing an investigation to ensure that further harassment does not occur. Examples of such measures are making scheduling changes to avoid contact between the parties, transferring the alleged harasser to a different location, or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. The individual making the complaint should not be involuntarily transferred or otherwise burdened as it could constitute unlawful retaliation. It is also important to keep the complainant apprised of the status of the investigation so he or she can contact an appropriate member of management at any time.

Whoever conducts the investigation must be objective, consider the relevant facts, and be thoroughly trained to interview witnesses and evaluate credibility. Additionally, the alleged harasser cannot have supervisory authority over the individual who conducts the investigation or have any control over the investigation. If the investigation is inconclusive, the employer must take proactive measures to meet with each individual separately to communicate the results of the investigation. The employer must also ensure that the complainant and the employee(s) accused of harassment understand their responsibilities going forward and that the company will not tolerate harassment of any kind.

In short, by drafting effective policies, providing training, and creating a culture to encourage the reporting of potential harassment, employers can mitigate their risk of legal claims.

Originally published in HR Florida Review

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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