Harvey Weinstein, Kevin Spacey, Louis C.K., Al Franken, Charlie Rose, Matt Lauer…these are just a few of the names that have been subject to a wave of sexual harassment, sexual assault, and/or inappropriate conduct allegations in the past few months. This spawned the #MeToo movement that doesn’t appear to be stopping anytime soon.
Some of the people named in the #MeToo movement have been those we respected and admired, and these revelations have sent shock waves throughout every community. The allegations have come in and many of the perpetrators have felt the consequences of their actions–lost jobs, increased public scrutiny, lost elections, and so on.
Has the #MeToo movement ushered in a new era in terms of how we deal with harassment as a society, a community, or an organization? It may have. Never before have we seen this. Never before have we seen so many be named and publically called out for their behavior and actions. Never before have we seen such swift and serious consequences for those who have behaved poorly. Never before have women (and others) collectively said, “enough is enough.”
While the #MeToo movement has brought harassment into the forefront of conversations in a way that seems very sudden, in reality it has been a long-standing problem. One that has caused employers liability for years and now is simply significantly heightened.
Take, for example, statistics from the Equal Employment Opportunity Commission (EEOC). There were 28,216 harassment complaints filed with the EEOC in fiscal year 2016 which resulted in monetary benefits to the EEOC totaling $125.5 million (not including private litigation). That makes harassment claims, allegations, and lawsuits one of the fastest growing areas of employment compliance violations.
As an organizational leader and employer, you should be concerned. You should be taking steps to prevent problems. You should be taking steps to improve your organization’s culture. You do not want you or your employees to be included in the group above of fallen, disgraced individuals.
How can you keep this from happening to you? Simply put, treat people with dignity and respect and foster a workplace that does the same. Prevention is the key, and that starts with you. Harassment issues are not a case of “ignore them and they will go away” or “I am above all of this” or “this doesn’t apply to me.” Harassment issues fester, get worse, and create significant liability if ignored or left unaddressed.
Most allegations of harassment fall under the “hostile work environment” category. This is typically defined as “conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment.”
Hostile work environment harassment can occur based on any of the “protected classes” covered under the many anti-discrimination laws enacted on a federal, state, and city/county level. These laws cover a wide variety of characteristics such as race, color, national origin, sex (including pregnancy-related conditions), religion, disability, sexual orientation, etc. Every state and city/county may have different protected class categories, and all employers should know which ones are applicable to them.
Hostile environment harassment can include, but is not limited to, indecent propositions, inappropriate discussion of sexual activities, obscene or discriminatory jokes, displaying sexually suggestive or racial pictures, crude and offensive language, ethnic slurs, pranks, and negative stereotyping. These situations rise to the level of harassment when it is severe and pervasive and an employee feels offended, intimidated, or fearful as a result of another person’s action.
Further definition is difficult since the “hostile” nature of the alleged act(s) is effectively defined by the victim. Whether or not the accused individual intended to harass or to create a hostile work environment is irrelevant in these claims. To the courts or investigating agency, it is about how the act(s) made the victim feel and whether or not a “reasonable person” would also conclude harassment occurred.
The other form of harassment is referred to as “quid pro quo.” Although we find it much less frequent, this is harassment that occurs when an individual is asked to submit to sexual conduct and perceives her/his job is conditioned on compliance.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute “quid pro quo” harassment when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,
- Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
- Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Your liability primarily stems from either a lack of prevention or a lack of action (follow up and follow through). In the event that a claim or a lawsuit is filed, two aspects will be reviewed in order to ascertain liability on the employer’s part:
- Whether or not the affected employee issued a complaint of harassment and then suffered a “tangible employment action” soon thereafter. A tangible employment action is, among others, denial of raises, termination of employment, denying access to training opportunities, or demotion. Bottom line, if the complaining employee suffered a tangible employment action, the employer will likely be on the hook for liability because it will be viewed as retaliation, which is prohibited at all times.
- Whether, in the event of no tangible employment action, the employer is able to present an “affirmative defense.” An affirmative defense demonstrates that the employer took “reasonable care” to prohibit harassment. What is reasonable care? Here are some of the components that support reasonable care:
- A comprehensively written harassment policy
- Regular communication of the policy
- Anti-harassment training
- Investigation of complaints
- Appropriate action taken with perpetrators when necessary
- Periodic follow-up with the victim
Failure to establish an affirmative defense, and the employer is toast. This is why prevention is absolutely imperative to this whole harassment problem.
Prevention: Step 1: Written policy and regular communication. A well-written harassment policy should:
- Define what constitutes harassment.
- Explicitly state that harassment of any kind will not be tolerated.
- Outline reporting channels and methods and insist employees report any harassment concern.
- Assure employees that a complaint will be treated as confidential as possible.
- Notify staff that investigations will be initiated upon receiving a complaint to determine its validity.
- Inform staff that appropriate disciplinary action, which may include discharge, will be taken against any guilty offenders.
This policy should be included in your policy manual, covered in orientation programs for new hires, re-distributed at least annually for continued emphasis, and referenced during anti-harassment training programs at a minimum to ensure all employees knew or should have known the policy and procedure at your practice. Bottom line, don’t just issue the policy once and never revisit it again. Ongoing communication is vital.
It should also be noted that California requires employers to provide employees with a copy of the anti-harassment policy as well as have employees sign an acknowledgement form.
Prevention: Step 2: Provide anti-harassment training. Some states (California) mandate anti-harassment training for certain employees, therefore, it’s critical to comply with those rules (if applicable). State mandate or not, anti-harassment training should be taken seriously and provided frequently. At a minimum, training should occur upon hire for all new staff members and annually thereafter.
An effective anti-harassment training program should be interactive, in person, at least four hours in length, and be tailored for the particular workplace. It should encourage people to report problems, empower everyone in the workplace to stop harassment, and discuss what people should do versus what they shouldn’t – a focus on civility towards one another.
Prevention: Step 3: Investigation of complaints. Timeliness is critical. The longer an employer waits to investigate a complaint of harassment the more it will appear as though the employer is not taking the situation seriously and does not intend on managing the problem. Investigating complaints should become an employer’s number one task to handle – all other tasks take a back seat. Furthermore, a failure to act could result in the employee being vulnerable to more harassment, which will increase the employer’s liability.
Employers should not go forward with the investigation unless they can be truly unbiased and are confident in their own abilities as an investigator. If this is not the case, then hiring a third-party to conduct the investigation would be more appropriate.
The objective of an investigation is to gather as much information as possible. The investigator can do this by collecting practice documents that may establish facts (i.e. payroll records, job assignments, working hours, etc.), and interviewing everyone involved (the accused, the victim, witnesses and others who know about the incident).
When conducting the interviews:
- Use open-ended questions and probe for as much detail as possible.
- Reiterate your understanding of the events with the person being interviewed and document his/her agreement with your version of the story.
- Compile written and signed statements.
- Remind each individual that s/he must come forward with additional information if needed after the interview.
- Keep factual details confidential at all times; stress to everyone involved the importance of confidentiality.
Maintain detailed records of any interviews and other materials that are relevant to the investigation. Once the investigation is over, prepare a final report detailing the investigatory steps taken and the final conclusion. Keep all documentation in a confidential file.
Prevention: Step 4: Take necessary disciplinary action. If the case is determined to be valid, take immediate and appropriate corrective action. This means taking “action reasonably calculated to end the harassment” and to keep it from recurring. Severity of the discipline will be determined by a number of factors, including the nature and seriousness of the offense and whether or not it is a repeated behavior. Examples of corrective action may include: apology to the victim, verbal / written warning, loss of seniority, counseling, training, suspension, and termination.
Prevention: Step 5: Follow-up. Respond to the employee making the complaint regarding the findings and resolutions. Periodically follow-up with the victim to ensure that the harassment has stopped, the remedy was effective, and no retaliation has taken place.
Remember that avoiding harassment charges is primarily addressed through prevention. You must take steps to ensure that employees are aware of your policy and procedures, and act when necessary to stop inappropriate conduct. By insisting that all individuals behave in the workplace in a respectful manner, you will significantly reduce the opportunity that objectionable behavior will occur. The benefits are a more harmonious work environment, with better job performance, less turnover and more money in your pocket.