Pub. 1 2018-2019 |Issue 2

The best protection against a sexual harassment lawsuit is as follows: • Have a policy about sexual harassment. You can’t do a good job of teaching anyone something you haven’t defined or thought through, so the first step is defining what sexual harassment is and making clear what behavior is or is not acceptable at your dealership. • Decide how you want to handle complaints within the company. Since a supervisor might be responsible for harassing another employee, make sure all supervisors are appropriately trained, and ensure that there is a way for people to complain about their own supervisor. You don’t want a situation where the supervisor has a reason to hide or ignore what has happened. • Remember to include same-sex relationships in your dealership’s sexual harassment policies. • Train the staff about appropriate behavior at work. Training is made much more difficult by high turnover, but that doesn’t mean you shouldn’t try. Make it part of every employee’s introduction to the job, and repeat it on a regular and frequent basis after that. • Do background checks on new employees, and evaluate the employees you currently have. If you realize that a particular person could present a problem to the dealership, either don’t hire themor don’t keep them. • Buy employment practices liability insurance. It can be a standalone policy or a rider to the Directors and Officers Liability policy. Is it expensive? Yes. Is it less expensive than being taken to court? Yes. Being taken to court is a real risk, unfortunately, so make the investment. Many policies give dealers training materials about discrimination, 800-numbers to be used for getting advice about employment practices and legal issues that involve sexual discrimination, and other tools. In other words, if you buy one then you will be getting something for the money you pay even if you don’t use the policy. Sexual harassment policies should cover two main areas: sexual harassment itself, and a hostile work environment. The following conduct constitutes sexual harassment, but it isn’t a complete list. However, it can give you some understanding of what to stop or prevent: • Sexual jokes. It doesn’t matter whether they are made verbally or are forwarded electronically, such as in an email. • Pictures or music that is sexually explicit. • Abusive language and vulgarity. A vulgar nickname is considered to be abusive language, and vulgarity by itself can be considered sexual harassment if it interferes with someone’s ability to do their job. • Improper touching. • Indecent exposure. • Continuing to ask a subordinate or a coworker for a date after refusals. Understanding what constitutes harassment is important because then you can recognize it even if people don’t recognize it themselves. A hostile work environment is something that can be created by anyone in the work environment, including vendors and customers. If the dealership has regular instances of offensive conduct such as the ones listed above, then that can create a hostile environment even though it might not be directed toward any one specific person. So can suggestive calendars, whether the calendar is displayed or not, or porn on password-protected dealership computers. Too often, complaints involve a combination of an attempted quid pro quo followed by creation of intolerable working conditions if the victim declines. What’s a quid pro quo? It occurs when one person offers another person some kind of favor or advantage but wants something in return, such as sex. What form can the retaliation take? Suppose a supervisor or manager asks someone else who works at the dealership for a date or for sex. Suppose the person who was approached declines, and then a campaign is started to either get the victim to quit or to prevent the victim from doing their job. That’s creation of a hostile work environment with intolerable working conditions and can get companies sued. How can nonemployees get a dealership into trouble? Suppose you bring in a trainer to the dealership, and the trainer makes inappropriate comments during lectures. The dealer, a manager, or HR should immediately put a stop to the behavior or risk liability for allowing it to take place. Your policy about sexual harassment should make it clear that everyone in the workplace – customers, vendors, coworkers, and subordinates – is to be treated in a dignified and respectful way. If anyone violates that standard, make it clear that the violation is to be reported immediately so it can be stopped. Setting and enforcing a high standard of behavior accomplishes the following goals: • It prevents the appearance of sexual harassment. • It will give your dealership a reputation for treating people professionally. In turn, that professionalism translates into a reputation for excellence. If someone does make a complaint, be sure to follow up about it. Employees should understand that they will need to talk about what happened and participate in the process of resolving any issues. As a dealership, your goal should be to act quickly, thoroughly, and impartially. Corrective action should also be taken promptly, no matter what, and should include possible job termination as a consequence. Selling cars is hard enough as it is. You don’t need to make it harder by allowing sexual harassment to be tolerated within your dealership. By identifying sexual harassment allegations quickly and dealing with them responsively, you will be better able to focus on your core business. 3 17