Ten Ways to Prevent Sex Discrimination in the Workplace

by Jaburg Wilk
Contact

Jaburg Wilk

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.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jaburg Wilk | Attorney Advertising

Written by:

Jaburg Wilk
Contact
more
less

Jaburg Wilk on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.