In the wake of a rising tide of allegations of sexual harassment in the news, and worse, against individuals in positions of power, there may be an increased willingness on the part of victims in the workplace to come forward with their own complaints.
Such allegations present a number of challenges for employers, from a legal and practical perspective. But, where either the victim or harasser is a contingent worker, and a second employer is involved, there can be confusion as to where the responsibility for investigation lies, and the appropriate action to take.
In the US, sexual harassment, when it occurs in the workplace, is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees. Per the Equal Employment Opportunity Commission, sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. It may include offensive remarks about a person’s gender either specifically or generally, such as making generalized comments about women.
The law doesn’t prohibit teasing, banter or isolated incidents provided they are not of a serious nature. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The employment status of the harasser and their relationship to the victim is irrelevant. The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker — or someone who is not an employee of the employer, such as a contractor, temporary agency worker, client or customer. The victim does not even have to be the person harassed, but could be anyone affected by the offensive conduct. For example, an employee made to feel uncomfortable when overhearing or witnessing sexist remarks by a coworker directed toward another.
Some states also have laws prohibiting sexual harassment, which may cover more employers than the federal law, where the threshold is fewer employees than the Title VII discrimination laws.
In addition, harassment may amount to a breach of the Occupational Safety and Health Act 1970, which requires employers to provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” OSHA defines workplace violence as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.”
The EEOC advises that prevention is the best tool to eliminate sexual harassment in the workplace. Employers should take steps necessary to prevent sexual harassment. These should involve clearly communicating to employees, and other visitors to the workplace, that sexual harassment will not be tolerated.
Establishing well-drafted workplace policies and an effective complaint or grievance process should be the first step for all employers. Secondly, providing sexual harassment training to employees should be considered where necessary or desirable. Third, taking immediate and appropriate action when an employee complains can be an effective way of ensuring that the issue does not escalate.
Contingent as aggressor. But what if the harasser or the victim is a contingent worker? Whose employer is responsible for taking the lead on the investigation? And what is the appropriate action to take if removing a contingent worker victim from the assignment could be construed as retaliation for raising the complaint?
The employer of the harasser will be primarily responsible for taking corrective action to address any unwanted conduct, where this is within their control.
Take a scenario where a temporary worker, employed by a staffing agency makes unwanted sexual advances toward an employee of the host employer, by making explicit sexual remarks about that employee, and the employee makes a complaint to the host employer. It is important that the staffing agency be informed of the allegation as soon as possible, and that it is involved in the investigation as well as the decision as to what correct action to take.
The staffing agency should have a policy in place covering the sort of conduct that constitutes sexual harassment by their contingent staff, and the range of responses that it may adopt in dealing with such conduct. It is unlikely that a temporary worker will have read this, but the staffing agency should have taken steps to bring the policy to the attention of the temporary worker before placing them in the assignment. As a result, the staffing agency may have a defense against an allegation that it could have prevented the act in the first place.
Appropriate responses from the staffing agency toward a temporary worker found to have engaged in conduct amounting to harassment may include a reprimand, suspension or termination of the assignment, depending on the seriousness of their behavior.
Contingent as victim. If the victim was an agency-assigned temporary worker and the harasser is a supervisor employed by the host employer, then it is the primary responsibility of the host employer to investigate the matter and take corrective action. Host employers share responsibility for what happens to temporary workers while they are on their premises, particularly under health and safety laws. Host employers, where the law allows, should share with the staffing agency the findings of the investigation as well as any corrective action taken with the accused.
The immediate response of a staffing agency receiving a complaint of harassment from one of their temporary workers will often be to remove the worker from the assignment. Sometimes the worker requests such a removal, rather than go through an interview to ascertain the facts or face their harasser again. Fear of losing a client by raising the issue, particularly if the client is the harasser, is a natural, if inappropriate, response.
But the staffing agency does a disservice both to the victim and to future contingent workers who may be placed with that client if it simply removes the worker and without raising the issue of the complaint with the client. If possible, the matter should be properly investigated, and the client should be informed. If the client refuses to take action to stop the unwanted behaviour occurring during the remainder of the assignment, in the face of a clear and proven allegation, then the staffing agency should remove the worker as a consequence of their duty to protect the worker. And if the circumstances indicate that there is a real risk of such unwanted behavior being repeated, then the staffing agency should refuse to supply similar workers to the client in the future.
Allegations of sexual harassment can be damaging to the reputation of businesses and individuals. Prevention is key to managing the issue. Effective communication of behavior policies, training and monitoring employees as well as being prepared to take decisive action, sends a message to those engaging with or affected by your business that you will not tolerate the sort of activity that is now being called out across society.