Preventing Sexual Misconduct in the Workplace

Sexual misconduct in the workplace continues to be a serious problem across industries, even in the wake of anti-harassment trends such as #MeToo. For employers, this issue continues to represent a pressing concern. Misconduct in the workplace can cause real harm to employees, degrade the productivity of a business, and even invite legal repercussions for negligence if you do not take appropriate actions.

In a new white paper, we investigate important things employers must know about creating an environment where harassment is less likely to occur. From defining a positive company culture to using background checks and sex offender screenings effectively, there are many things you can do to create a safer workplace for everyone. 

Sexual Misconduct in the Workplace: What Employers Need to Know

Employers want to create a positive work environment reinforced by a high-quality company culture. HR teams would like to ensure that everyone receives equal treatment while preventing the development of office toxicity. Unfortunately, research reveals the stark contrast between these ideals and the reality. According to the National Sexual Violence Resource Center, 14% of men and 38% of women say they have directly experienced sexual misconduct in the workplace.

Such numbers are unacceptable and help explain the rapid rise and strong response generated by the #MeToo movement. However, hashtags and trends fade—even if their message shouldn’t. After a global pandemic and economic turmoil, the conversation surrounding preventing harassment and assault has steadily received less coverage. Lasting changes have taken place, but the work isn’t over—employers must remain mindful of that.

For SMMEs, fostering a safe work environment and responding appropriately to allegations of abuse are efforts critical for success. Companies in this category are often small and growing, and building cohesive, productive teams is fundamental to setting the stage for future growth. A scandal that occurs because of abusive team members or lax organizational policies can be more than a PR nightmare; it could even lead to serious lawsuits. 

If you don’t have a clear policy, you must develop one promptly. For SMMEs who have already worked on such a policy, it is wise to revisit it periodically to review your understanding and assure compliance. In this white paper, we will look at what workplace misconduct looks like and how it’s defined. Using that, we will explore the current state of the law, delve into why background checks are a key tool, and explore how to use effective company policy to reduce the risk of problematic behavior.

Defining Sexual Misconduct is the First Step Toward Understanding

Definitions are important to begin with because this problem encompasses many different behaviors. Strict legal definitions may also vary from state to state, so it is important to check carefully on the specifics of the laws in your area. Given that variation, what do you need to know? Some examples can help.

A general definition of sexual misconduct

Sexual misconduct most often refers to everything from unwanted advances of a sexual nature (such as lewd comments) to actual sexual assaults. While such serious crimes in the workplace are rare, they aren’t unheard of—which is why companies must be vigilant. “Misconduct” also refers to crossing boundaries that could violate company policies but may not meet the legally defined standards of “sexual harassment.” Significant overlap exists in these areas, such that they are mostly used interchangeably. 

According to the Equal Employment Opportunity Commission, harassment includes:

• Requests for sexual behavior
• Unwanted advances
• Inappropriate touching
• Sexually-charged verbal harassment

However, the EEOC also notes that a sexual nature is not always required to qualify as illegal sexual harassment. Verbal or physical harassment based solely on an individual’s sex or gender identity is also potentially actionable. For simplicity, this paper focuses on misconduct and problematic behaviors that are sexual in nature, but employers should be aware of this nuance.

What can misconduct in the workplace look like?

Your business must be able to recognize sexual harassment and misconduct when it occurs so that you may take immediate action. While entire HR training courses about the subject exist, a few examples can help illustrate the behaviors you should strive to prevent and eliminate. Some common examples include:

• Making repeated, undesired comments about someone’s appearance or lewd remarks about an employee’s body or behavior.
• Consistently making inappropriate jokes of a sexual nature 
• Non-sexual, non-consensual touching, such as hugs or touching body parts
• Catcalling 
• Unwanted kissing
• Non-consensual grabbing or touching of genitals

To a large extent, a culture that encourages reporting observed misconduct and policies that you enforce fairly help prevent such issues. At the same time, you must strive to hire team members who don’t carry with them a high level of risk of harming someone in your business. 

What Does the Law Say About Workplace Sexual Misconduct?

The law surrounding workplace sexual misconduct can seem confusing at first. This is partially because today’s rules ultimately derive from broader civil rights laws rather than laws that criminalize such behaviors outright. There are a few key points to understand, though.

The Laws, Regulations, and Requirements You Must Know

The keystone laws that make workplace sexual misconduct/harassment illegal are the Civil Rights Acts of 1968 and 1991. These laws and subsequent case law classify problematic workplace behavior as illegally discriminating based on sex. Alongside this provision is the simple fact that many cases of misconduct can rise to the level of actual sexual assault, a crime in its own right everywhere in the nation.

Most states don’t explicitly require a sex offender background check during the hiring process except in certain sectors, such as those who work with children or jobs in education. Simultaneously, your business could face legal liability and claims of negligent hiring if you bring aboard a sex offender who then re-offends while representing your company. Such risks make it clear that companies must have a plan in place.

What Can Happen if Your Business Doesn’t Comply?

Non-compliance can lead to many problems, not the least of which is creating a potentially toxic and dangerous work environment. If sexual misconduct occurs in your workplace because of conditions you allowed to develop, you may face civil lawsuits accusing you of negligence. If a judgment goes against you, your business could be on the hook for hundreds of thousands or even millions in damages—a certain doomsday scenario for many small and medium enterprises.

The federal government could also take action if the EEOC receives complaints about your practices. The EEOC may file suit alleging violations of the Civil Rights Act on behalf of those who suffered from the misconduct. Again, such lawsuits can prove financially draining, time-consuming, and heavily damaging to a company’s reputation.

Taking the appropriate steps to make safe, smart hiring choices and to protect your employees is always the best choice. Using background checks during the hiring process is a good place to stake out your first line of defense.

How Can Background Checks Help Protect Your Teams?

Consulting state sex offender registries and an individual’s criminal history report is a key part of the hiring process when you want to prevent misconduct. Imagine hiring for an office position, but an individual’s record comes back with a prior conviction for aggravated rape—you might very well wish to move on to another candidate. The same is true if someone has a criminal record that indicates other risk factors, such as a propensity for violence or violating the boundaries of others.

Remember that denying candidates who have any form of criminal record could be discriminatory. However, you have the right to decide based on what you believe will lead to a safe and secure workplace. Background checks help you detect major red flags that could indicate a candidate simply poses too much risk to your business and your staff.

Can Background Checks Prevent Misconduct?

No background check can predict the future, and there is no guarantee that someone with an apparently clean record will not engage in misconduct in your company. However, background checks help you manage the risks you encounter in hiring. Thorough screening demonstrates your commitment to due diligence and can guard against future negligence claims—especially if you take action against workplace abusers immediately.

There are limits to what you can discover with pre-employment vetting. For example, does harassment show on a background check? Unless someone faced criminal assault charges, the answer is usually no. Employers are very unlikely to tell you when a candidate was fired or faced allegations of sexual misconduct. Because you cannot catch every possible risk factor using background checks, it is vital to use them in conjunction with workplace policies aimed at prevention, too.

A Basic Guide to Implementing Better Background Checks

The policy you create for screening services will need to suit the specific needs of your business and its industry. To begin with, you should familiarize yourself with the process necessary for using background checks to detect potentially risky candidates. Here’s a quick look at what you need to know.

Follow These Steps to Screen Candidates More Effectively

Once you’ve reached the appropriate stage in the hiring process for vetting candidates, you will need a workflow that delivers the necessary information. The following is a sample of what an effective policy could look like.

1. Notify the candidate of your intent to use a background check and provide the appropriate disclosures. Get consent to the check.
2. Order a criminal background check that produces results from well-maintained records repositories nationwide. Consider checking with your local county courts, too.
3. Choose a background check that screens not only criminal history databases, but state sex offender registries as well. If your candidate has lived in other states, check those states, too—some offenders may not register when they move, even though the law requires it.
4. Receive the results of your orders.
5. Evaluate the checks for information that could represent a serious red flag for potential misconduct. Some states count certain offenses, such as public urination, as a sex crime—so dig deeper to understand the specific charges against your applicant if such results appear. 
6. Follow adverse action guidelines or move forward with your candidate.

Don’t Forget What the Law Says About Background Checks

Even if you only check the sex offender registries, you’re still using “consumer reports” to make employment decisions. Per the Fair Credit Reporting Act, you must provide a standalone disclosure about this process and the applicant’s rights. You must receive their signed consent to an FCRA form. If you decline an applicant based on their results, you must follow the adverse action workflow, including a waiting period.

Safe Workplaces Need More Than Just Good Screening

Background checks are only one part of the larger landscape of fostering workplaces in SMMEs where everyone feels safe. Remember, screening only takes you so far. An individual could present themselves flawlessly in an interview, only to turn into a serial problem in the office. Recall that misconduct can include behaviors such as repeatedly making inappropriate comments or jokes, and even light but unwanted touches could be the source of a complaint.

If proper vetting through background and sex offender registry searches is your first line of defense, then the policies you make and enforce in your office are the second. 

Developing Your Approach for Fostering a Safe Work Environment

Today, there’s a wealth of information out there that you can use to improve your business and its practices in this area. For SMMEs, creating a solid foundation for anti-harassment policies early on ensures that your company preserves those values for the long term. This is an area that demands action, not just lip service. To that end, you should focus on two areas: corporate culture and employee education.

Making Your Company Culture Matter

“I was afraid to say anything” is one of the most common refrains among those who suffer the most from workplace misconduct. When a company’s culture does not place a high value on employee safety, communication, or proper boundaries of behavior, problems abound. Good culture comes from the top, meaning leadership must be all-in on these processes.

You can embody a positive culture in your business when you:

• Have a clear policy that defines and prohibits harassment while offering clear guidelines for reporting, investigations, and other actions. Be clear you don’t tolerate any misconduct.
• Keep the lines of communication open. Encourage confidential reporting and allow individuals to remain anonymous to the wider office to prevent retaliatory harassment.
• Be consistent, but be thorough. Investigate all claims equally and enforce your policies without favoritism. Employees must see that you follow through on your claims.

When employees come to HR or management with concerns, listen carefully and take action thoughtfully.

Educating Employees About Misconduct

Good company culture doesn’t come strictly from setting boundaries—you must enforce them and educate your staff. Some people may not fully understand the nuances of what amounts to misconduct, while others may benefit from training to help others recognize or report misbehavior. Providing training on how to recognize and prevent harassment can prove to be a smart investment.

Some states have laws that specifically mandate anti-harassment training in the workplace. States that require you to invest in this area include:

• California
• Connecticut
• Delaware
• Illinois
• Maine
• New York

California mandates that supervisors must receive training, while Connecticut mandates it for all employees. In virtually all other states, governments recommend that employers engage their staff in anti-harassment training, but they do not require it. Alongside equipping your business with the right background check process, you should strongly consider training, too.

Wrapping Up: Your Role in Stopping and Addressing Misconduct 

No one should ever feel uncomfortable or unsafe at work. As an employer, it’s your responsibility to create the conditions for safety and security, whether you hire for positions in a hospital or run a retail store. This task is essential for SMMEs, too. The culture you create today and the policy frameworks that support it will be the same ones you carry through to you in the future. It’s challenging to change course and correct your approach once misconduct has already occurred—not impossible, but certainly a greater challenge than creating the right conditions from the start.

Stopping misconduct requires a clear-eyed and determined approach. It demands robust background checks and the drive to make the decisions that can keep potential abusers from the office floor. With rigorous, well-defined policies and an HR team empowered to enforce them, you can create a positive environment where employees understand you’ve got their back on this critical issue. 

Review your policies on sexual misconduct in the workplace today and start exploring where and how you can strengthen your approach for a better future.