As we previously reported here and here, we are conducting a mini-series of posts that will explore and examine some of the most important and interesting aspects of sexual harassment in wake of the Harvey Weinstein scandal that has prompted a reevaluation of how harassment is handled in the workplace.
In our previous two posts, we discussed the issue of statute of limitations and the effect of non-disclosure agreements in relation to sexual harassment claims. Now, you may be asking, “how can employers effectively prevent a sexual harassment claim from occurring and what policies should an employer implement to ensure their employees are not subjected to sexual harassment in the workplace?” While employers cannot eliminate the possibility of employees occasionally acting inappropriately, there are reasonable steps an employer can take to prevent unlawful harassment, including having proper policies describing and prohibiting sexual harassment, notifying employees of their right to make complaints, and ensuring employees know that complaints will be promptly investigated and remedial action taken, and that complaining employees will not be subject to retaliation.
Throughout the past two months, since the explosive news of Harvey Weinstein’s indecent past, several prominent figures have been added to an extensive list of alleged high profile harassers—from NBC’s Matt Lauer to U.S. Sen. Al Franken. It may be difficult for employers to understand their responsibilities regarding sexual harassment in the workplace, but there is more urgency than ever. As mentioned in a previous post, it is extremely likely this trend will trickle down to employers all over the country, and the courts will see an uptick in sexual harassment claims. Employers need to be prepared and ensure they are minimizing the risk of a harassment claim and in the event a claim comes forward, the employer needs to be prepared to handle the complaint seriously and thoroughly. The importance of an employer’s obligations in rooting out, training, and preventing sexual harassment cannot be stressed enough.
Set a Zero Tolerance Harassment Policy for All Levels
If not done so already, employers should strongly consider implementing a zero tolerance harassment policy. This means the company does not and will not allow any form of harassment regardless of the degree of the alleged harassment or the alleged harasser’s position within the company. Maintaining and enforcing a zero tolerance policy is the only way to ensure that an employer will not be susceptible to claims that the employer has fostered or tolerated an unprofessional workplace culture in which sexual behavior is common. Any complaint of harassment should be treated equally, no matter who brings forth the claim and who the complaint is made against. In order to avoid being blindsided by the impending storm that began with the Weinstein scandal, employers must make clear in no uncertain terms that harassment will not be tolerated in any form or measure.
Provide a Multichannel Complaint Procedure and Assure Employees that They Will Not Be Subject to Retaliation for Making or Participating in a Harassment Complaint
A key part of preventing sexual harassment in the workplace is ensuring employees know they can and should come forward to identify harassing behavior and that they understand that they will not be retaliated against for doing so. In shocking numbers, the United States Equal Employment Opportunity Commission, a federal agency that administers and enforces civil rights laws against workplace discrimination, estimates that three out of four people who encounter sexual harassment do not report the incident either out of fear they will be retaliated against or no one will believe them. Therefore, it is imperative that employers have an anti-retaliation policy in place to promote the importance of employee’s reporting harassment in the workplace. Employees need to be aware that solely bringing forth a harassment complaint or participating in an investigation will not result in any form of retaliation.
In the past, even employers who encouraged the reporting of harassment made the mistake of requiring employees to first report complaints to their supervisors before going to Human Resources or another supervisor or member of management. The problem of course is that frequently, it is the employee’s supervisor who is guilty of engaging in harassing behavior. Instead, employers should have a multichannel complaint procedure that provides employees with at least two separate avenues for making harassment complaints. Employees should be able to bring a complaint to various members of management or HR and not just one specific individual.
An employer’s complaint policy should also clearly indicate the steps that will be taken in response to an employee bringing forth a harassment complaint. This will create a system for employers to follow in response to a complaint being made and weed out any confusion the employee may have as to how the complaint will be investigated. The investigation should be prompt, followed by remedial action if harassment is found to have occurred. In our next post, we will discuss the importance of investigating sexual harassment complaints and having a competent investigator who conducts a thorough and prompt investigation.