Sex, politics, and religion have been dominating headlines. From the sexist storm unleashed by a male candidate’s condescending remarks about Carly Fiorina’s face, to a female candidate’s silence about her husband’s long list of infamous sexual infidelities, to the cultural conflict raging between segments of the religious community and the LGBT community, volatile watercooler conversations and the workplace waves they can create form the perfect legal storm at work.
If not approached with discretion and genuine respect for coworkers who may hold differing views, these tinderbox topics can easily explode into costly claims of harassment or discrimination. The Oklahoma Anti-Discrimination Act holds all employers liable for sexual and religious harassment and discrimination. And the Oklahoma Supreme Court has said employers can be held liable for same sex harassment.
Additionally, a growing body of federal legal authority holds that unlawful sex discrimination includes disparate treatment based on sexual orientation and gender identity. These types of work-related legal claims can cost employers tens and even hundreds of thousands of dollars to defend.
To minimize risk, employers should take proactive precautions. First, adopt an up-to-date policy prohibiting behaviors that lead to harassment or discrimination claims. In a recent gender identity harassment case, a manager repeatedly referred to a male subordinate in masculine terms, knowing he preferred to be recognized in female terms. While a good policy can’t stop people from doing unwise things, it is proof you’re trying to do the right thing.
Second, clearly communicate your policy to all employees. It’s vital to ensure your expectations regarding acceptable and unacceptable behavior are clear. It’s equally important that employees know the various ways they can report problems in confidence and to whom they should go to get the prompt help they need.
Third, hold leaders accountable for basing all employment decisions — from hiring to firing — on relevant business and job-related reasons without regard for illegal factors like race, color, religion sex (including pregnancy), age, national origin, citizenship, disability, genetic information, veteran status or any other legally protected characteristic. And require leaders to exercise the discipline to diligently document all of the lawful reasons why employment decisions were made.
Fourth, regularly train leaders on best practices for preventing harassment and discrimination. Don’t make the fatal mistake of assuming leaders know what to do, when to do it or how to do it well. In my experience, having a good policy simply isn’t enough. Quality, periodic training can make all the difference in minimizing costly risk in an increasingly risky time.
Lastly, it’s imperative to follow and enforce your policies as you strive to faithfully model your corporate values. You cannot afford to tolerate managers or employees who fail or refuse to show care and respect for others who may have different beliefs and lifestyles. When you follow and enforce your policies, they can be an effective legal shield.
If you don’t, they will be used as a sword against you.
Be sure to check out GableGotwals at the 2016 OKHR State Conference!
Chris arbitrates employment disputes in Oklahoma, Texas, Arkansas, Missouri, Kansas, and New Mexico.