2018-02-28 / Observer Business

When there’s no HR

For small companies, sexual harassment can be a big problem

She didn’t know what to do. At first, the young woman was happy to be part of a small, three-person, family-run business. But then the boss started coming on to her. He’d comment on her looks. He’d touch her shoulder. Finally, when his wife was away, he asked her to dinner.

The story is fictitious, but victims of harassment could face the same dilemma. Because of the size of the business in the story – fewer than five workers – the woman would have no legal recourse to complain about sexual harassment, other than filing suit or criminal charges against her boss. Or she could quit.

Due to a legal quirk, the smaller the size of a company in Virginia, the fewer resources a worker has to fight harassment, according to Ann Hodges, a law professor at the University of Richmond. Does it mean unequal rights under law? “It does,” Hodges says.

Dealing with the issue can be “really, really hard in a very small business,” Hodges says. According to U.S. Small Business Administration, about 1.5 million people, or about 47 percent of all Virginia workers, labor in “small” businesses of fewer than 500 workers. Of these, about 16.8 percent work at firms with fewer than 20 people, according to recent data.

If a company has 15 or more workers, harassment claims are heard by the federal Equal Employment Opportunity Commission, which can mete out fines for sexual discrimination. The Virginia Human Rights Act covers those in firms of five to 14 people.

But if there are fewer than five workers, there are few procedures for complaints other than filing a lawsuit or a criminal charge for sexual assault, lawyers say.

This bitter reality remains after months of harassment cases in which dozens of high-profile individuals in the media, business, entertainment and politics have resigned or been fired after harassment complaints. The trend has picked up speed with the #MeToo movement on social media to out alleged harassers.

The Richmond area drew national headlines late last year when Joe Alexander, chief creative officer of The Martin Agency, a highly regarded advertising firm downtown, left the company abruptly due to claims he sexually harassed female coworkers. Alexander, who helped create such signature advertising hits as the Geico insurance gecko, has denied any wrongdoing.

While sexual harassment and assault allegations against celebrities and high-profile executives garner headlines, it’s a problem not confined to entertainers and big business, says Lisa Lawrence, an attorney with Richmond-based Lawrence & Associates, which specializes in workplace issues. It just often doesn’t get reported as much.

“No company, no matter how small, is immune from allegations of sexual assault or things like that,” Lawrence says.

Business managers should always be aware of the possibility of harassment even if a worker doesn’t complain, Lawrence says. If there is a complaint or suspicion, the manager should try to assign separate working spaces for the alleged perpetrator and the victim. Employees should be told not to discuss anything about the case. It’s best if an outsider, such as a law firm, is hired to investigate the matter independently, Hodges says.

Another tip is for managers to be proactive by having a process in place to handle complaints and offer training to employees. For small businesses that don’t have human resource departments, consultants are available. If a firm has a process to handle complaints and the alleged victim doesn’t follow the process, it would be harder for him or her to sue the employer, Hodges says. But training, or having a complaint process, isn’t enough by itself.

Sexual harassment training for supervisors and employees has had mixed results, experts say. Its success depends largely on how management handles it. If the training is a once-a-year affair that is treated lightly by managers, then the message won’t get through, says Hodges.

Lawrence says that training is a good idea, but it’s critical to take it seriously. “If management sits there and rolls its eyes or has training only once a year, it probably won’t stick,” Lawrence says. But if it is clear that sexual harassment training is important to management, and that complaints will be investigated, then potential harassers may think twice.

What if an employee is falsely accused of harassment? Hodges notes that “it really doesn’t happen a lot.” Far more common, she says, is that victims do not complain. “They don’t want to be in the news. They just want it to stop,” she says.

A danger is that if a worker is falsely accused and word gets out, the worker could sue the employer for defamation. Plus, being in the news for sexual harassment can be toxic for any company, Hodges says.

As with any problem, the best approach to harassment is prevention, not remediation. Having a harassment-free work environment keeps good employees. And that’s good for the company, too. ¦

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