Title VII is the Civil Rights Act of 1964. Sexual Harassment is covered until this historic act and as an employer or manager you are required to know how the Supreme Court of the US rules on matters related to all subjects of this nature. So, tune in and let’s discuss the necessity (or not) of Sexual Harassment training in your organization.
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SBS 009: SHOULD HR MANAGERS CONSIDER SEXUAL HARASSMENT TRAINING NECESSARY?
Small Business Spoonfuls is a twice a week Q&A with Lisa Smith providing the answers to questions you have about running your small business.
Hello, hello, welcome to Episode 9 of Small Business Spoonfuls. I m Lisa Smith. I m so excited to be bringing you Episode #9. We have been on the air now for a couple of weeks, maybe 3 weeks, maybe 4 weeks. It has just been such a fun ride. I am so excited. You can find us now on STITCHER at STITCHER.com. We are all over the place.
You can go to smallbusinessspoonfuls.com I don t know how you found us. Maybe you found us on iTunes. Maybe you found us at STITCHER. Maybe you found us on our website. You can also find us at beauditsecure.com. Just click on podcast and you can listen to us as well there. It is so exciting to be able to do this and connect with this audience of small business owners and managers. I am just so excited and thankful that you guys are here.
Shouts out to you. Give yourselves a high five. I know, my goodness. I know, I’m a little nuts. Let s just move on. Yeah, I want to just kind of tell you guys what has been going on here. We are having a really great time here in the ATL. I just got back from Texas. I visited some family out there. That was kind of cool. It’s nice to go back to the stomping grounds every now and then and see a little different site. It’s really beautiful there. Lots of rain and sadly some floods.
Shout out to all of you folks in Texas who are enduring some pretty bad weather out there. I have some family in Dallas and Amarillo and all over the place so take care you guys, hope everything is going well for you. Yeah, I just want to take a minute to say I ve been doing this podcast now for a few weeks. Like I said, I m having such a great time at it. I ve been getting folks who are starting to write in and engage more, so that is really awesome. At smallbusinessspoonfuls.com you can leave a voicemail if you like.
We have the speak pipe app there. I would love to be able to play your questions on the air just coming out of your own mouth. Wouldn t that be fun? If you can just leave me a voicemail there, that would be super exciting stuff. Then you would hear your voice on air. When I use your questions, as always, I will forward you out a t-shirt. Then you will have a little memento of our moment together and it is just something fun we can do together. Thanks for participating guys and gals, keep those questions coming in.
The question today in episode #9 is: People keep telling me I should be training on sexual harassment. I have a small business. We only have 8-9 people on any given quarter. Do I really have to? Well, thanks for that question, because that is a super good question. Under the federal law, sexual harassment training and so forth is really addressed through title 7. Title 7 is the Civil Rights Act. The Civil Rights Act protects our workers from discrimination based on race, religion, sex, ethnic origin.
Pretty much anything you can think of now is coming under title 7. Title 7 has been amended a lot through the years. Now we are protecting sexual orientation, gender identity, lots of things like that are now being protected and fought in court based on title 7. Title 7 is kind of a big deal. This is where a lot of folks go wrong in advising you about your responsibilities under title 7. A lot of people will say according to title 7 it applies to employers with 15 employees or more. If you have fewer than 15 employees, you don t have to provide the training and so forth protections and education preferences and all that under title 7.
I m going to call BS on that. Even though the law does saw the no. 15 in there, I m just going to call BS. Let s just for a moment propose that you have an employee in your business of 8 people. That employee feels that he or she has been harassed by you or anybody else or a customer who has come into your organization and has been harassing your employee and your employee feels like you have done nothing to curb that behavior. Maybe in some cases when it is a customer we even say just put up with it because we don t want to lose the business.
That s really super bad, too. Whatever it is, that has happened, let s just say. Then the employee goes and they sue us. Then we say, well, we are going to fight this because under title 7 we don t really have to offer a lot of these protections because we have less than 15 employees. It wasn t our job to really worry about a lot of this sexual harassment, hostile environment stuff. That would be very misguided thinking and whoever advised you of that, you need to switch attorneys, switch consultants, switch whoever told you that. That is wrong. Try to imagine this. You are standing in front of the court and you say, I thought it was okay to allow my client or my other workers who harassed this worker because we only had 8 people. How about you try this defense, you know what, I felt like I could discriminate against a person who was a different ethnic origin or a different race, because I only have 8 people. If you have 15, you have to treat people correctly but if you have under 15 people, you can really just treat them like dirt. You really think that s going to fly in court?
I m going to probably go out on a limb here and just say no, and it is really not a very long limb. What we need to do is we need to remember that to answer your question, do I still have to train on sexual harassment even though I m a small business? Absolutely yes. You not only need to be training all of your employees what is sexual harassment, what is hostile work environment, how does all of that come into play? You need to include bullying in the workplace. You need to include in this keeping people safe from violence that comes in from the outside.
Violence can take many forms and a person who is being sexually harassed, this is a form of a verbal violence if you want to put it that way, a verbal assault and it definitely falls under this. Let me just give you another little clue here. I ve got a lot of clues for you today. Very helpful hints on ways you can justify this to yourself. If this is a concern you are going to take back to Big Boss because maybe Big Boss is the one telling you we don t have to do this training. It is very expensive. I m not required to so I m not going to.
Here are just a few other things you can take back to Big Boss. There were some court cases that have been fought several years ago that are continuing to be upheld. They are not just only court cases, they are Supreme Court cases. That means the Supreme Court of the United States said you are doing it wrong and you have to do it this way. These cases came to light in a couple of cases about sexual harassment and hostile work environment and that sort of thing.
Basically the decision of the court was that they ruled for the plaintiff and in both of these cases, the comments back to the employers were, if you had only offered training to your employees and if you had only written policies and procedures stating that we have a no harassment policy and we are training everyone on it and if you do it anyway, you are going to be written up and penalized and terminated. If you had had these strict guidelines, whether you felt like you needed them or not is irrelevant.
If only you had had them, then maybe we would have protected you more in this case. Instead, these employers paid out large sums of money, settlements, big deals, had really negative publicity so they paid in more ways than just one. They were told straight up, in at least one of the cases, they were told even since you weren t required by law to provide training, if you want to argue that with me, if you had just made it available to them, even if your employees didn t take advantage of the training, didn t come to the training, maybe
these days if it was on-line and you said everyone go on-line and do it and if they didn t, if they refused to and you didn t terminate them for it, because it was technically optional training, just making the training available, would have acted as an insurance policy to those employers. Since they had no training in place. They had no policies and procedures in place. I don t even know if they had employee handbooks in place. Whatever it was, they didn t cover sexual harassment, hostile environment, bullying in the workplace.
All of that, they didn t have them. There was no available protection for them. It was just nonexistent. You are probably wondering which court case was these, where can I go read this for myself? You know me, I am rule of 3 s Lisa. I m going to give you the links so you cannot only take my word for it, you can go read it for yourself and decide how you want to handle this in your organization and those links are going to be in the show notes. Check the show notes, get the links, and go read about it for yourself.
Here is another little argument I want you to take note of. For those folks out there that will tell you that you don t have to do this type of training and have this type of policy because you are a small employer, well, I have another thing under this little act called the Occupation Safety and Healthy Act and OSHA as we know is governed by the Department of Labor. Under OSHA, if we have 1 employee, we have to follow OSHA guidelines. You may say I have a teeny tiny office.
I have 5 or 6 employees, in your case, the person who wrote in, you have roughly 8. You have this little office, maybe you all sit at desks and work on computers all day long. The most dangerous thing you do is break a nail when you hit the wrong key or something. Well, you think that is kind of excluding you from obeying OSHA guidelines because you may be justifying it or maybe people have been advising you to justify it as you know, we don t do anything dangerous here. You don t really have to train any of your employees.
That s just for construction companies, manufacturing companies, people who work with chemicals like maybe you have a floor surface company and you are dealing with Xylene or something like that. This is not the case. This is a flat lie and you have been misled. Under OSHA there is this little thing called the general duty clause. The general duty clause says that anything, any circumstance, anything that could possibly present injury, serious harm or death to your employee is something you have to cover in an action plan, in policy and procedure and you have to provide penalties for it and remedies for the actions and so on and so forth if you have 1 employee.
I am going to argue with you that if someone created a hostile work environment for me and they were sexually harassing me, maybe they were bullying me, maybe they were constantly making me feel uncomfortable with their jokes, whatever it may be, that I have been verbally assaulted and mentally I have been damaged, I have been harmed. I am going to argue this with you in a court of law and your response is going to be what? Exactly, you don t have a response because you can t use the Civil Rights Act of 15 employees or more.
You are now being asked to prove yourself against OSHA where under the general duty clause you were supposed to protect me. Now in addition to this, OSHA has very specific, very strict recommendations on providing a safe work environment where it comes to work place violence. Work place violence under OSHA s definition includes items like bullying in the work place or anything that could be perceived as a violent act against a worker. Who are you to say what I perceive as a violent act? Exactly. I perceive violence as coming in the form of sexual harassment, because let s just say, I have a history where I was raped and I don t have to tell you that, but that is my history.
Now all of these comments and all these actions against me that are being seen as funny and normal and maybe even complimentary to other individuals in the workplace are seen by me as verbal assaults and I am having posttraumatic stress reactions to these things and I don t have to tell you why. I did not have to tell you about my past history when you hired me, but this is what the deal is and you are not acting to stop it and you didn t act to prevent it either. You could argue, Lisa didn t report this to me. How was I supposed to know?
Well, you were supposed to act first, not last. You were supposed to be proactive and not reactive. Now grant it, I should report these things to you. I should not go straight to an attorney or straight to OSHA or straight to the DOL or whoever I go to. I shouldn t. I should come talk to you about it first. That would be the thing to do but people don t always do the thing you think they should. That s why as an employer, as a manager, as a supervisor, talking very directly to you right now. Some people might even say I m yelling at you. I m being reprimanded to you. I m not.
I m really just wanting you to understand the seriousness of this conversation and how there are many guidelines out there, many federal, many state statutes that say I don t care if anyone ever told you that you had to do it or not, , you have to. Please remember that. I don t want your employees to get hurt. I don t want you to get hurt. You re running a small business, man. You are on a tight budget. You don t have time or money to spend on attorneys and lawsuits and payouts and all the negativity that drags up and then you lose customers and you lose clients and then you lose your business maybe.
It s not that you didn t want to take care of the people. You never thought about it. You just didn t know it was a thing or you didn t know you had to. That s where I come in. That s what I love to do. That s what I do with beauditsecure.com and Audit Secure Authority. That s what I do with Small Business Spoonfuls. That s what I do with my blogs that I write. That s what I do with the consulting. Whatever it is, the help desk line with HR and payroll, and so forth, OSHA resources to help you be compliant.
If you don t have a good OSHA plan, please visit beauditsecure.com and look at all of our provisions because we have some really great OSHA provisions there under Help Desk for OSHA Compliance and we have a medical/dental version as well as a regular small business. You need to get out there and you need to find a way to be compliant and you need to be kept up to date on what that means. Years ago being compliant with OSHA for instance, meant that you made sure people didn t get a crane dropped on their head. Today it means everything. There is no limit to what it means.
We are talking about sexual harassment and I just brought in OSHA. You know, HR is everywhere. HR is everything. You cannot give me a topic, I m going to challenge you, give me a topic that you think does not relate to HR and I will tie it in somehow someway. Okay? That is just my game I play with myself. I take any topic available and I tie it to Human Resources because it is everywhere. It is governed in the least places. Believe me, I can get an attorney to come in and argue the OSHA thing with you on sexual harassment and I can win.
I can probably win bigger than I would if I just argued straight sexual harassment and you didn t protect me. If I bring in OSHA, now I m probably going to win bigger. Now we are going to have to go back and talk about other employees too, not just me. This is going to get big and this is going to get ugly and this is going to get expensive. Please do not think because you are a teeny tiny business with one worker that you don t have to follow training and development policy and procedure guidelines, because it is absolutely a must.
For those of you who are now sitting here wondering, how in the world do I get this training? Training is expensive. You go on-line. You look at a sexual harassment course. It may be $200 to get one person certified that they ve been trained or you call in a speaker to come in and talk to your group. How do you make that happen? That s expensive too. All those things are possible, depending on the format of your business. You are going to have some really great opportunities depending on how you want to set it up.
If you want to find a very reasonable way to train your workers on everything from sexual harassment to how to use pages on Mac or Office 365 in the latest release or Fresh Books because you are replacing Quick Books and using Fresh Books now, or you want to talk to them about having empathetic conversations or handling conflict or whatever it might be. All that training that you want to make available to folks that is so expensive to do it piecemeal, come talk to us at beauditsecure.com because we have ways to make that happen for your organization for extremely little money.
I am talking about very inexpensive based on the number of folks that you need to train. You don t have to have very many to get an extremely reasonable price. That s all I m going to say about that right now. I will give you a link in the show notes to email me for more information on that, because I m kind of giving you a teaser right now for things that we have coming up at beauditsecure.com and we haven t talked about it a lot. Drop me an email and say I am a concerned employer and I need to know how I can get extremely inexpensive training for my workers. I will hook you up.
Alright, well, let s transition to the topic of the day for HR Superstar. Today s HR Superstar is going out to once again a new TV show, not really new, it s in its second season. I am just falling in love with it. It is called Halt and Catch Fire. Maybe you ve seen it. Halt and Catch Fire is on the Cable channels. I have put a link in the show notes so you can go check it out. It is in its second season. It takes place in the 1980s. It talks about the evolution of the personal computer and businesses moving over into the world of computerization and just going into the development of on-line gaming and all the things that we use computers for today.
They are walking us through some of the drama behind, this made up drama, of how this all came to be in Dallas, TX in the 1980s. It is an awesome, awesome, awesome, on my gosh! I can t even say how awesome this TV show is and it is partially because I am a little bit of a geek, a little bit of a nerd. I am not by any means any sort of a computer expert or a coding professional. I don t have any real big IT background but I have had some input with software development and creation and that sort of thing.
I worked with a team to do that and I am fascinated by how all of this work. Halt and Catch Fire is a lot of fun. Go out and check it out in the show notes. Here we go. HR Superstar moment is a glass breaking moment showing us how to do it wrong. We have been talking about sexual harassment and how OSHA covers that. There is a lot of sexual harassment in Halt and Catch Fire. You can definitely find that. However, what I am talking about today is at some point there is a company that is developed.
I don t want to give you the whole show away. It is a company called Mutiny. They are a gaming company. They develop at some point and they do all of their work in the developer, the creator of Mutiny in her house that she is renting in Dallas, TX. She has this house, it s probably 2-3 bedrooms. It s not huge. I m guessing by the look of it, it is probably 1600 sq. ft. It is a decent size home but not huge huge huge to run a business out of. She lives there, she works there and she operates 24/7 out of that house.
So that in itself is not wrong. A lot of us operate our businesses from home. That s totally cool. We can do that. There s nothing wrong with that. We can have workers come into our home and work and that s totally cool. She is doing some really bad HR things. They don t go into this. I think it s pretty apparent. She doesn t have any liability insurance covering her workers there. I know she doesn t have an OSHA policy. The entire place is filthy. The workers not only work there, they sleep there, and they live there.
In one scene, they have all these dirty dishes in the sink and there are ants crawling all over the dishes, which a big thank you goes out to Halt and Catch Fire for not making those cock roaches. I was really loving the fact they made them ants and not cock roaches. That would have really grossed me out, but the ants were bad enough and made the point nicely though. This was a cesspool people are working in. In the real world today, if we are running a home business, we need to have designated work areas.
We don t need to just have where everybody is living and sleeping at work. They are working till all hours of the night, taking a 20 minute nap, taking a 2 hour nap, waking up and going back to work. I don t know how she s paying these people. Some of them she has even made clear that she is not paying them until the business takes off and then she will cut them in. They are not technically full partners, they just kind of act like partners. She is still the owner of the business. That s wrong. You can t do that.
Those are wage and hour violations right there. OSHA is a huge thing. They ve got electrical wires strung all over the place. They are stapling things to the wall, trying to make it work. They haven t called in any actual electrician to do all of this actual electrical wiring and work trying to make all of this connectivity work for back in the day. They mess with the phone lines all the time and they don t involve the phone company. That s wrong. All of these things she is having these untrained workers do.
Not to mention the environment they are working in and the yelling and swearing and screaming that may go on in some of these episodes because things get tense and frustrating and people lose their cool with each other. All of this in today s world would be considered OSHA violations. We would have hostile work environment issues, unclean work issues, code violations of all sorts that would be putting our workers in harm s way. HR Superstar this week is going out to Halt and Catch Fire for the glass breaking, thumbs down moment on doing it wrong.
Thank you as usual, Halt and Catch Fire, because you guys have taught us how not to do it. If you want a good example of that, take a look at the whole show. The entire show is full of HR faux pas. Especially when you get to the Mutiny setting you will see what I mean. Go out, take the show notes, get the link, go binge watch it and get caught up. Then join me in the glory and glamour and excitement that is Halt and Catch Fire.
Alright, then, that will do it for today s edition of Small Business Spoonfuls. Thanks for tuning in, y all. I will see you in Episode 10. Until then, I am Lisa Smith, be audit secure. I am out.
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