SPRING 2018 TODAY’S GENER AL COUNSEL
Labor & Employment
Combating Sexual Harassment in the Workplace By Sabrina A. Beldner
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ince last fall, news media have shined a spotlight on beloved actors and high-powered film producers, politicians, media moguls and others who have fallen from grace as a result of sexual harassment allegations. This is hardly the first time sexual harassment has dominated headlines (remember Anita Hill?), but this feels different. This wave of incidents has been met with widespread public outrage, reproach and resistance in the form of the #MeToo movement. It inspired the formation of the Time’s Up organization, and has empowered women to no longer tolerate or be silent about sexual harassment or other improprieties in the workplace. So, what does this mean for employers, and what should they do next? First, employers can expect to see an increase in harassment claims and complaints. Some claims may be exaggerated or involve actions that simply do not rise to the level of harassment. Some may be stale, years-old allegations that are no longer legally actionable or involve someone who has since left the company. But other claims will have merit. Therefore, all claims must be taken seriously and thoroughly investigated. To ignore claims or to dismiss them as too dated or insignificant, or to serially pay off employees victimized by a highly valued predator puts the employer’s brand and business at risk and endangers employees. One poorly handled incident can reach millions of people in hours, and the public fallout could be significant — loss of clients, customers, vendors, brand partners and, most importantly, loss of public support. Second, employers should take practical steps to communicate a commitment to a harassment-free work environment, and follow those communications with
the company’s policies, regardless of how they learn about such allegations. That includes incidents that a manager or leader does not witness but only hears about anecdotally. • Communicate that retaliation for reporting concerns of harassment or sexual harassment is strictly prohibited. DISTRIBUTE YOUR POLICY
actions to address and remedy workplace harassment. Employers should update their policies to clarify what behavior constitutes harassment and sexual harassment, and make everyone aware that there is zero tolerance for such behavior. A strong anti-harassment policy should: • State that harassment is prohibited on the basis of membership in any class protected under state or federal law. • Identify each protected class under state and federal law. • Provide relevant examples of prohibited harassment and sexual harassment that are germane to today’s workplace (yes, an employee can engage in harassing behavior over email or text message). • Make clear that harassment is prohibited at work, even if it is committed by a non-employee (i.e., a guest or vendor). • Provide multiple reporting avenues for an employee to report harassment or share other workplace concerns. Consider an anonymous hotline for employees who are uncomfortable filing direct complaints to the company or their managers. • Require supervisor-level employees and upper management (including C-level executives and the company’s board) to immediately report allegations of conduct that might violate
Employees and supervisors should receive the anti-harassment policy, and an employer should obtain and retain signed policy acknowledgments from them that indicates that the policy has been received; that they understand that the policy applies to employment; that they are encouraged to report harassment through the reporting avenues set forth in the policy; that the company will conduct a full investigation and take necessary measures to bring an end to any inappropriate behavior that violates the company’s anti-harassment policies; and that retaliation for reporting a complaint is forbidden and should be immediately reported to the company. Employers should consider redistributing the policy periodically by a method that is effective in reaching all employees. For employers who regularly use e-mail to communicate, this could mean periodically e-mailing the policy to employees or sending them a link to the policy on the company intranet. For employers who do not communicate via e-mail, consider town hall-style meetings to reiterate the key components of the anti-harassment policy. The policy should also be posted in the employer’s facility, generally where other workplace postings or employee communications are displayed and/or in employee break areas or locker rooms. TRAIN EMPLOYEES
Periodically train all supervisors, including