Start Ups + Small Businesses.

There is a compelling case for businesses to prevent and appropriately respond to sexual harassment. Beyond the human cost, sexual harassment seriously impacts the bottom line. The EEOC reports that from 2010-2015, employers paid $698.7 million related to sexual harassment through the Commission’s pre-litigation process alone. Cornerstone Capital Group recently examined the financial risk of sexual and gender-based violence to companies and found that both types of violence present strategic and operational risks. 

Proactive, robust, and transparent policies and practices help organizations prevent and respond to sexual harassment. In this section, you'll find tools and resources business leaders need to create a respectful and productive workplace.

Tools for Small Businesses

Check List

Model Policy

Training

Investigations Info

The Law

​Sexual harassment is a violation of state and federal law and includes unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature which threatens job security, working conditions, or advancement opportunities. Sexual harassment can be perpetrated by any gender or sexual orientation against any gender or sexual orientation.

​The two major categories of sexual harassment addressed within federal and state law include quid pro quo harassment and harassment which creates a “hostile work environment.” ​​It is important to know that for employers to be held liable, they must be notified of the harassment, or be deemed that they should have been aware of it.

​Quid pro quo harassment is when a job, promotion or other professional benefit is conditioned on the individual’s submission to sexual advances or other conduct or when such benefits are denied because the individual refused to submit to sexual request(s).

A hostile work environment is created when unwelcome verbal, physical or visual conduct is severe or pervasive, and creates an intimidating, hostile, or offensive work environment or interferes with work performance. Employees may experience this kind of sexual harassment even if the offensive conduct was not directed toward them.

Some Examples:
Examples of sexual harassment include:

• Making sexually explicit or derogatory comments or jokes, either verbally or via email
• Inappropriate touching or groping
• Questions about sex life or relationships
• Sexually suggestive looks, leers, noises, gestures
• Pictures, cartoons, screen savers
• Forwarding sexual material via e-mail or text
• Texting sexually explicit text or images

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Contributing Factors

Research indicates there are a range of factors which can significantly increase the likelihood of sexual harassment in the workplace. Some are common and/or inevitable features in the start-up (and/or small business) environment:

• ​Significant Power Disparities: Though power disparities exist in most workplaces, significant disparities can create additional risk. High status employees, board members or investors may be emboldened to exploit lower status employees who may fear the possible ramifications of making a report.[i]
• Young Employees: The presence of young employees, particularly in their first or second jobs, can increase the risk of harassment. In addition to contributing to the problem of power disparities, these employees may be less aware of laws and norms and may lack the self-confidence to challenge inappropriate conduct.[ii]
• "High Value" Employees: Another risk factor includes enterprises where some employees are considered particularly valuable – the person with the big ideas, the “rainmaker,” or the one with a strong relationship with a primary investor. These employees may believe the rules don’t apply to them, and management may be reluctant to discipline them.[iii] Similarly, other employees may be reluctant to make a report against a high value employee.
• Homogenous Employees: Sexual harassment of women is more likely in workplaces in which employees are primarily male. Many start-ups fall into this category. One study showed a “huge” gender disparity at start-ups in the tech sector, with 80% of technology employees being male.[iv] Men in start-ups are often in positions of power. Start-ups are predominantly founded, run and staffed by men: in 2017, women-led companies received only 2% of all venture capital funding in the U.S.[v] Workplaces which are predominantly one race (usually white) can also be a contributing factor. 
• Isolated and/or Decentralized Workplaces: Harassment is more likely when employees are physically isolated, have few opportunities to work with others, and/or where there is limited communication between levels of the organization – employees to management to board. In these situations, there are fewer “eyes on” and harassment can go unchecked. Given Maine’s geographic and economic range, start-ups are as likely to spring up and “go it alone” in a small town or rural area as they are to arise in the urban centers.   
• Alcohol Consumption: Workplace cultures that allow or encourage alcohol consumption as part of enterprise norms have an increased risk of sexual harassment.[vi]

[i] Feldblum & Lipnic. (2016). U.S. Equal Employment Opportunity Commission Select Task Force on the Study of Harassment in the Workplace Report. Retrieved from: https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf
[ii] Ibid.
[iii] Ibid
[iv] https://www.theatlantic.com/business/archive/2014/12/statistically-speaking-what-does-the-average-startup-look-like/384019
[v] http://fortune.com/2018/01/31/female-founders-venture-capital-2017/
[vi] Samuel B. Bacharach et al., Harassing Under the Influence: The Prevalence of Male Heavy Drinking, the Embeddedness of Permissive Workplace Drinking Norms, and the Gender Harassment of Female Coworkers, 12 J. Occup. Health Psychol. 232 (2007).

The Facts

​Sexual harassment law, policies, and practices do not prohibit friendships and collegiality in the workplace - they encourage respect. A hug, kiss on the cheek, compliment or casual touch is not necessarily sexual harassment. The key is whether the behavior was unwelcome or offensive.
 
Sexual harassment does not necessarily involve romance or sexual attraction. It does not matter if a person has sexual feelings towards the recipient, only that the behavior is of a sexual nature and that it was unwelcome and/or offensive.
 
Sexual harassment can be perpetrated between any gender. While sexual harassment by a male to a female is the most common, the victim as well as the harasser may be female, male, or transgender. The victim does not have to be of the opposite sex.
 
Sexual harassment can involve anyone who plays any role in a business.
The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
 
Sexual harassment can be conduct directed at one or more people.
The victim does not have to be the person harassed but could be anyone who is negatively affected by the offensive conduct.
 
Sexual harassment does not require an intent to harass.
The intent of the harasser is irrelevant: it is the effect of the conduct on the victim and the workplace environment that counts. 

Training & AwarenEss

Maine law requires sexual harassment training for employers with fifteen or more employees as well as additional training for supervisors. However, all organizations, regardless of size, should follow best practice (and risk reduction) and provide in-person, anti-sexual harassment training for all members of the board, management and staff, during employee on-boarding and on a yearly basis. Organizations should also consider including employees of contractors or vendors who are regularly on-site, or alternatively should request that such training be provided by the third-party entity. Effective training should not be simply focused on avoiding legal liability, but must also create a culture of respect that starts at the top.

• Training should be tailored to the specific risks and needs of the enterprise. Ensure that your organizational risks are reflected in your training and that examples of harassment are the kind of the issues employees might face within your business structure.
• Find a good trainer. Management should ensure that the trainer has experience providing sexual harassment training, has good references, understands your business and is willing to tailor the training to address your concerns and policies.
• Create buy-in. Ensure all levels of management are present at the training in order to demonstrate the enterprise’s commitment to a workplace free of harassment.
• Training should include guidance for victims including documentation of incidents, telling the harasser to stop (if it feels safe and comfortable to do so), and the local resources available to support them.
• Training should provide guidance to empower bystanders (others in the workplace) to step up on behalf of an employee who is being harassed.
• Separate training should be provided for individuals responsible for taking reports. Training for people who will be taking reports should include how to make the individual reporter feel comfortable; how to gather initial facts; how to create and maintain good documentation; how to assure against retaliation; and what to do next.
• Train management and supervisors separately, preferably in a follow-up session, regarding their role and responsibilities in prevention and the consequences to the enterprise of their conduct and/or their inaction when they know or should know that harassment is occurring. 

Training Recommendations

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Effective Policy

A key element to prevent and effectively respond to sexual harassment in the workplace is crafting effective organizational policies. Having policies which address sexual harassment and support victims in reporting may provide insight into the enterprise’s level of risk exposure.[i] Sexual harassment policies must be easy to understand and tailored to the work environment where they will be implemented. Characteristics of effective and legal policies include:

• Sexual harassment policies should set clear boundaries and expectations for all employees.

• Policies which define and prohibit sexual harassment should include a minimum of legal language and focus on clear and real examples of sexual harassment. Examples should be reflective of the dynamics of the particular workplace. 

• Sexual harassment policies should set clear boundaries and expectations for vendors and subcontractors. Contracts with those parties should include standards for proper behavior, violation of which may be grounds for contract termination and/or liability.  Contracts should include a clause requiring compliance with the company’s sexual harassment policy and agreement to give each individual who comes to the workplace regularly a copy of the sexual harassment policy.   

• Policies should include reporting procedures that provide multiple avenues for reporting. Organizations should designate more than one individual to whom an employee may make a report. This is particularly important in small organizations where the individual designated to receive reports may the person engaged in harassment. Organizations can also consider designating an outside entity to receive reports. 

• ​Policies should give victims a clear sense of a how reports will be investigated. Victims often express concerns about not understanding what will come next if they choose to report. It is critical that policies are transparent about the investigation process, while acknowledging that each investigation will be tailored to the circumstances. 

• Corrective action should be proportional. While every business should strive for zero occurrence, policies that treat all sexual harassment the same – “zero tolerance” or “you do it, you’re fired” – may have a chilling effect on an employee’s willingness to report or intervene in situations involving lower level harassment. This weakens the company’s ability to take corrective action before it gets more serious. To encourage early intervention with the kind of harassment which can escalate and/or become a more pervasive part of the workplace culture, it is important to encourage bystanders to intervene and victims to report in cases of lower level harassment. Policies should be crafted to encourage reporting or intervening; avoid stating “zero tolerance”; and assure employees that they will not be retaliated against for reports or interventions. 

• Remember bystanders. Policies should provide tools so that all employees are empowered to support a harassment-free workplace. Policies should outline the role of bystanders in creating a harassment-free work environment and provide specific examples of the role a bystander can play.

Model Policy Template

Leadership & The Role of Culture

​Good policies are not enough. Organizational leadership plays a critical role in setting the tone and creating accountability. It is crucial that employers foster an organizational culture where sexual harassment is not tolerated and where they lead by example.  

Workplace culture has the greatest impact on allowing harassment to flourish, or conversely, in preventing harassment. The importance of leadership cannot be overstated...but a commitment (even from the top) to a diverse, inclusive, and respectful workplace is not enough. Rather, at all levels, across all positions, an organization must have systems in place that hold employees accountable for this expectation."
-Equal Employment Opportunity Commission, 2016

• Assess workplace for risk factors and craft strategies to mitigate against them. Carefully consider the risk factors associated with the workplace. Is there a gender imbalance? Are there a significant number of young employees? Where are the most significant power differentials present? How physically isolated are the employees? Also pay special attention to overlapping risk factors. For example: Are there lower-level, young, female employees within a primarily male workforce? Then -- be proactive. Craft strategies, including training, that address the risks head-on. Talk about it.

• It bears repeating: organizational leadership should be particularly sensitive to their real and perceived interpersonal power dynamics and the way even their casual questions or requests may carry implicit authority. Meetings should be held in an environment that is professional, safe and comfortable for all parties.

• Allocate resources necessary to prevent and respond to sexual harassment. Invest in good training and ensure the enterprise has the resources needed to respond to reports.

• Ensure leadership highlights the organizational policy frequently and through a variety of avenues. One and done doesn’t work. Consider periodic lunch and learns or other opportunities to discuss issues related to organizational culture.

 

• Leadership should step in early and engage in a candid discussion with any employee who exhibits harassing speech or behavior and ensure that they understand that the behavior must stop immediately, as well as taking other actions as warranted.

 

• Ensure that supervisors are responsive to the agency’s policies and committed to preventions and early intervention. Consider creating metrics and including consideration of agency culture as part of performance reviews.

• ​Ensure that, when sexual harassment is discovered, the organizational response is prompt and proportionate to the severity of the harassment. The enterprise should move quickly to address the allegations or engage a third party to do so, allowing for as much transparency as can be provided.

• Respond to potential victims/reports with empathy, clarity and confidentiality (to the extent possible). If an employee reports an incident of harassment, assume the complainant is being sincere until further inquiry can be undertaken, while bearing in mind that the report itself does not predetermine guilt. Reassure the reporting party that the organization takes harassment very seriously and that s/he will face no retaliation for reporting. Outline next steps and timeline and check back. While confidentiality may not always be possible, every effort should be made to keep the investigation private.

• Leadership should be alert for any possibility of retaliation against an employee who reports harassment and take steps to ensure that such retaliation does not occur. Retaliation is illegal, and it is a serious concern for individuals reporting harassment and can take many forms.  Anyone making a complaint or participating in an investigation is protected against retaliation that occurs even if in small part because of a harassment report. Retaliation includes, but is not limited to, firing, change in work responsibilities, transfers, ignoring or excluding, unwarranted discipline, or otherwise making a complainant feel uncomfortable or unwanted in the workplace. Keep in mind that reports of retaliation outnumber reports of substantive harassment, both in internal company complaint processes and complaints filed with enforcement agencies.  

• Leadership must remain constantly vigilant. Keep eyes on. Be alert to the organization’s evolving risk factors. Consider a climate survey to better assess the workplace culture.