Sexual Harassment Compliance Mandates: Everything You Need to Know in 2021

Preventing sexual harassment has been on the agenda for most companies since Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and discrimination in the workplace. But the emergence of the 2017 movement, #MeToo, has caused employers to pause and reflect on the effectiveness of their anti-harassment training.

According to a Stop Street Harassment survey, 81% of women and 43% of men reported suffering from harassment in the workplace. From verbal harassment to unwelcome sexual advances and full-out sexual assault, it is clear that there is a lot of work to do to create safe work environments.

While the Equal Employment Opportunity Commission (EEOC) offers some sexual harassment policies and guidelines, there’s no single set of compliance sets companies can take to reduce risk or liability.

As a result, it can be a struggle for HR managers and small businesses to design effective training requirements from scratch. Identifying strong policies and properly explaining sexual harassment is another weak point. A poorly thought-out sexual harassment policy can easily backfire.

In particular, if there is no way to conclusively decide whether harassment has taken place and victims are exposed to retaliation post-investigation, it’s likely the victim will leave the company. The business, meanwhile, will continue to house the harasser and could face legal recourse if there are more victims.

At the same time, as the workforce went remote in 2020, more small businesses are finding themselves needing to meet additional training requirements from the states their employees live in.

To reduce the likelihood of sexual harassment, managers need to take a proactive stance on sexual harassment prevention. Small businesses also need to meet the minimum training standards to avoid legal non-compliance.

The definition of sexual harassment

Sexual harassment is any unwanted sexual advances or requests for sexual favors. It’s not always violent and harassment isn’t gender-specific.

Sexual harassment is any unwanted sexual advances or requests for sexual favors. It’s not always violent and harassment isn’t gender-specific. In fact, anyone can do it to anyone, regardless of their role in an organization. This broad definition is one of the reasons designing a sexual harassment compliance program can become so difficult.

Generally, there are two main types of sexual harassment: Quid pro quo and a hostile work environment.

Quid pro quo

Quid pro quo, a Latin phrase meaning “this for that”, covers harassment as sexual advances, requests for sexual favors, and other verbal or physical advances in which an employee’s position or job security is under threat if they refuse to comply.

Consider the #MeToo movement. When looking at the multiple allegations against Harvey Weinstein, many of his victims reported being promised job benefits in return for sexual favors. In this instance, the harassment appears consensual, but the employee is coerced and unwilling.

Hostile work environment

A hostile work environment entails sexual advances, requests for sexual favors, and other verbal or physical advances that unreasonably interfere with an individual’s work performance by creating a difficult environment.

Some examples of conduct that contribute to a hostile workplace are:

• Discriminatory practices
• Sexual or diminutive comments related to someone’s body
• Pornographic or sexually suggestive imagery
• Unwelcome touching, even if it is not sexual
• Offensive or sexual gestures

Unfortunately, this sort of harassment is fairly common. In a recent study, 45% of employees admitted to witnessing harassment and 53% of harassment victims felt too unsafe to report the behavior.

Anyone can contribute to a hostile environment

Employers are liable for the sexual harassment of existing employees by managers and people with supervisory authority even if the employer is not aware of the harassment. Employers may also be liable for harassment from:

• Non-supervisory employees
• Customers
• Patients
• Clients
• Independent contractors
• Acquaintances

Currently, there is no federal law in place that requires employers to provide sexual harassment training. California, Connecticut, Delaware, Illinois, Maine, and New York are the only 6 states that require employees to undergo sexual harassment prevention training. In New Jersey, state agencies must undergo training, and Maryland actively encourages prevention training.

However, it is best to take a proactive stance against sexual harassment and require training for your employees even if it is not strictly required. The fact is, a hostile workplace harms your workers, reduced productivity, and creates a sense of mistrust throughout your organization. Training can help you reduce harm in the long run.

It is best to take a proactive stance against sexual harassment and require training for your employees even if it is not strictly required. The fact is, a hostile workplace harms your workers, reduced productivity, and creates a sense of mistrust throughout your organization.

Sexual harassment prevention training aims to help employers and supervisors:

• Constitute what is and isn’t sexual harassment
• Craft proper corrective action policies
• Streamline their company complaint process

Through the training, supervisors should be able to accurately and effectively document and investigate harassment claims.

However, training is not just for the HR team. Everyone who works at the company should take sexual harassment training. This includes full-time employees, part-time employees, temporary employees, interns, entry-level employees, supervisors, managers, volunteers, independent contractors, and C-suite executives.

How to train your employees

If you reside in one of the six states that require sexual harassment training you can simply follow the guidelines already laid out for you. Just make sure that you remain up to date on any changes that may have taken place since your last sexual harassment training period.

However, if your state does not require you to provide sexual harassment training to employees you will have to find alternatives.

California’s Department of Fair Employment and Housing provides a free, online training course on preventing sexual harassment and abusive conduct in the workplace. The training is designed to be accessible on computers and mobile devices. At the end of the training, your team can print a certificate of completion.

Another option is to follow the sexual harassment guidelines of a state that mandates training. Keep in mind that they vary from state to state.

For most businesses, hiring a professional with training to give educational seminars on sexual harassment in the workplace is the most effective way to provide training. It will also give both supervisors and employees an opportunity to ask questions and get direct answers.

Once you decide how you want to bring prevention training into your workplace, you’ll need to determine how often you’ll need to visit the topic. Almost all of the states that require training suggest that you hold it during employee onboarding, usually during the first 90 days, and on an annual basis.

When it comes to training materials, educational videos and presentations have been the traditional medium used to train employees on preventing sexual harassment. But you may want to try interactive training options to keep employees engaged.

Fostering a fair and supportive workplace

Employers need to establish a culture of transparency that includes open dialogue and safety for whistleblowers. Employees who step up to make a complaint need to know that first and foremost that their job titles are secure and that you won’t brush their complaints aside.

At the same time, you’ll want to speak to an employment attorney about ways that you can protect yourself as an employer from litigation. Your employee handbook should always be up to date with the current guidelines and procedures. Not having a current employee handbook and proper training and procedures in place could lead to punitive damages even if your business is in a state with no requirement for sexual harassment training.

Lastly, make sure sexual harassment training is an ongoing process. Provide educational pamphlets quarterly so that employees can have a reminder on what sexual harassment is and how they prevent it.

Prevention training for a remote workforce

However, a digital workplace does not mean sexual harassment will go away. As we mentioned, harassment includes more than physical conduct of a sexual nature. Sexual harassment can happen online as well as in real life. Employers need to remain just as diligent in training remote workers as they were before the pandemic.

For companies that have recently started hiring remotely during the pandemic, they may find themselves on the hook for completing state-based training requirements. As each state program is different, even between city and state in the case of New York state and New York City,  it can help to have an online platform to easily purchase, administer, and track training.

Having a digital platform to streamline your prevention training will also allow you to have an auditable trail to ensure regulators that you are in compliance.

Investing in the process

It is the responsibility of every employer to ensure that they provide a safe working environment for their employees. Part of this includes educating employees on the proper conduct of the workplace, but also through ensuring employees that they are safe when reporting a complaint.

Do you work or have employees in California, Connecticut, Delaware, Illinois, Maine, New York, and Washington? Many deadlines for required employee training have taken effect, or are coming January 1, 2022. To help ensure you’re covered, Zenefits has integrated with Zywave Learning to offer courses that satisfy these state requirements plus General Training for other states — check them out here.