Ten Ways to Prevent Sex Discrimination in the Workplace
The #metoo movement has many employers worried about protecting their employees from discrimination and harassment. Employers often ask what they should be doing to prevent discrimination in the workplace and how best to respond to complaints of discrimination or harassment. By following our 10 best ways to prevent and address discrimination in the workplace, employers can protect themselves from liability and improve their company's overall working environment.
1. Apply the Platinum Rule
While the golden rule states that you should treat others as you want to be treated, the platinum rule states that you should treat others as they want to be treated. How does this relate to sex discrimination? When an employee submits a complaint of discrimination, the first question that management should ask the employee is, "What do you want to see happen?"
Management should listen carefully and then ask specific questions such as:
- Which witnesses should I interview?
- Assuming I conclude that your complaint is legitimate, what discipline do you feel is appropriate?
- Is a written warning sufficient?
- Can you continue working with the harasser?
- What information can I share with the harasser about your complaint?
- Are you concerned about other employees finding out about your complaint?
- What can I do to protect you while we investigate?
- Do you want me to separate you from the harasser during the investigation?
Management should be careful not to interrupt the employee so that the employee feels heard and understands their concerns are being taken seriously. Management should then send a letter or email to the employee summarizing their allegations and confirming what the employee wanted to happen. Management cannot always agree to do everything an employee wants. While the employee may not want the harasser to be fired, they do want the harassment to stop. The employer can often give the employee exactly what they want by issuing a written warning to the harasser and informing the employee that the harasser has received a warning not to engage in that kind of behavior again.
Applying the platinum rule makes the employee feel empowered and heard.
2. Routinely Update Anti-Discrimination Policies
Employers should have an experienced employment attorney review and update their anti-discrimination policies on a regular basis. The LGBTQ community has recently been very successful in gaining new legal protections through both state and city laws, as well as favorable court decisions that broaden the scope of Title VII of the Civil Rights Act of 1964. Many anti-discrimination policies fail to include these changes in the law.
3. Provide Regular Training to Employees
Employees should be required to attend regular training courses about what discrimination is, to whom reports of discrimination should be filed, and what to do if they witness discriminatory behavior.
Besides the obvious–don't discriminate against anybody–advice given at every training course, employers can provide employees with what is known as bystander training. Bystander training teaches employees what to do when they witness discriminatory behavior. For example, if an employee hears a fellow employee making an offensive comment to another employee, they learn in bystander training to respond with for example, "That joke wasn't funny," and then change the subject. The bystander should first approach the victim separately and ask, "I noticed that happened. Were you okay with that?" If not, the bystander should then privately approach the person who made the offensive comment and ask, "Were you aware of how you came off in that conversation?" Studies have shown that this is a much more effective practice to end discriminatory behavior than lobbing accusations. In an ideal world, many kinds of issues can be resolved by a well-trained bystander.
4. Provide Separate Training for Management
Employees need to be able to recognize discrimination and know how to report it, but management needs to be able to appropriately respond to complaints of discrimination. It is therefore recommended that employers provide separate management training that focuses on best practices for responding to complaints of discrimination. Managers need to receive regular training and guidance on the most recent practices for improving working conditions and preventing discrimination, including bystander training.
5. Don't Let the Small Things Slide
Companies should document all complaints and concerns, no matter how minor. Research shows that when companies start to let the small things slide, it opens the door for more severe behaviors to enter the workplace. Knowing that the small stuff will be addressed, helps eliminate it.
6. Proportional Consequences
Most victims of harassment don't want the harasser to be fired – they just want the harassment to stop. Employers should therefore make it clear that their goal is to eliminate harassment in the workplace, not to immediately terminate. Employees will feel much more comfortable complaining of harassment when they understand there will be proportional consequences and the harasser won't lose their job over the complaint.
Employers should, however, make it clear to all parties involved that if the harasser continues with the offensive behavior, then they will be terminated.
7. Promote Gender Equality in Management Roles
Studies show that when there are more women in management and leadership roles there are fewer claims of sex discrimination and a more equal balance in pay among men and women. Having more women in management will build a more collaborative work environment, likely foster more mentoring, can provide a boost in financial performance and bring a different communication style.
8. Document Everything
Employers should document all complaints of discrimination and their response to each complaint. There should be clear documentation about which witnesses were interviewed, what each said, as well as when and what remedial actions were taken. The best practice is to send the victim a letter or email summarizing (i) what actions the employee wanted to happen, (ii) what actions the employer took, (iii) reasons—if any—for why the employer did not take certain actions requested by the employee, (iv) an assurance that the employee will not be retaliated against, and (v) an assurance that if they do suffer retaliation or other harassment, the harasser will be dealt with appropriately. In an ideal world, the employee will respond by stating, "Thank you for addressing my concerns." If the employee were to later file a charge of discrimination, this email or letter could become very important.
9. Designate Several Individuals to Receive Complaints
Many employers designate only one or two people to receive complaints of discrimination or harassment. That can be a bad idea because if those individuals are the ones doing the harassing, then the employee cannot be expected to complain to those individuals.
When several people are designated to receive complaints of harassment, the employee is more likely to feel comfortable filing a complaint. Employees may be nervous to file a complaint with the President of the company or an HR representative they barely know. They're far more likely to report their concerns to their immediate supervisor or a supervisor in another department. Any supervisor or manager can be designated as the "employer" if harassment is reported to them. As long as each designated employee has received the proper training, this will promote an open-door environment where employees feel comfortable reporting their concerns.
10. Consult Legal Counsel
When issues arise in the workplace, it is always a good idea to consult an experienced employment attorney. While employment law can be very complicated for an employer, getting a professional's opinion can help establish best practices and ensure compliance with the law.
Being proactive, having a policy in place, educating your employees and seeking experienced legal counsel will help insulate companies for sexual harassment and discrimination claims.
About the Authors: Jeffrey Silence is an employment law attorney at the Phoenix law firm of Jaburg Wilk. He helps employers with challenging employment law issues including employee handbooks and policies. Kraig J. Marton is the chair of the employment law department and he assists employers to stay in compliance with the many state and federal employment laws.
"Jaburg Wilk has a unique culture that is different than other law firms. We call it the "JW Way."