In a great post on her blog, attorney Robin Shea talked about the new EEOC guidance on sexual harassment that was just released. You can find it here, and you should read it! You have until February 9th to let the EEOC know what you think about it. You need to read Robin’s blog post on some comments she has about the new guidance. As I read the guidance, especially on the training section, my impression was that this was guidance written for larger companies and it makes it more difficult for small companies to comply.
The EEOC states in this guidance document:
“Leadership, accountability, and strong harassment policies and complaint systems are essential components of a successful harassment prevention strategy, but only if employees are aware of them. Regular, interactive, comprehensive training of all employees will ensure that the workforce understands organizational rules, policies, procedures, and expectations, as well as the consequences of misconduct.”
I totally agree with this statement, however, the provision of “regular, interactive, comprehensive training of all employees” can be burdensome for smaller companies that don’t have the resources that larger companies have, especially given some of the other requirements. These include that harassment training should be:
- Championed by senior leaders;
- Repeated and reinforced regularly;
- Provided to employees at every level and location of the organization;
- Provided in all languages commonly used by employees;
- Tailored to the specific workplace and workforce;
- Conducted by qualified, live, interactive trainers, or, if live training is not feasible, designed to include active engagement by participants; and
- Routinely evaluated by participants and revised as necessary.
The requirement “Conducted by qualified, live, interactive trainers, or, if live training is not feasible, designed to include active engagement by participants” may be expensive to achieve for a small company.
The requirements of an investigator
In addition to training that may be difficult for small companies to achieve, just the requirement to be considered a competent investigator may be difficult for small companies. This guidance says that employees responsible for receiving, investigating, and resolving complaints or otherwise implementing the harassment complaint system must be:
- Well-trained, objective, and neutral;
- Have the authority, independence, and resources required to receive, investigate, and resolve complaints appropriately;
- Take all questions, concerns, and complaints seriously, and respond promptly and appropriately;
- Create and maintain an environment in which employees feel comfortable reporting harassment to management;
- Understand and maintain the confidentiality associated with the complaint process; and
- Appropriately document every complaint, from initial intake to investigation to resolution, use guidelines to weigh the credibility of all relevant parties, and prepare a written report documenting the investigation, findings, recommendations, and disciplinary action imposed (if any), and corrective and preventative action taken (if any).
Given that many small companies do not have a single individual designated as HR, having someone capable of performing such an investigation may require hiring outside resources that may put a burden on company resources.
Small companies get caught on the outside of many regulation promulgated by the U.S. government. Dealing with regulations that crafted with just larger businesses in mind ignores the fact that more than half of the working population is employed by small business.
There needs to be some consideration of size and resources.