It has been just one week since the recording emerged of Donald Trump bragging about sexually assaulting women. Since then, women have been coming forward accusing him of harassment and assault. The recording not only resulted in the loss of a number of key political endorsements, it resulted in Tic Tac denouncing him (which followed the Skittles denouncement after Trump compared Syrian refugees to Skittles). His response to the recording was that it was “locker room talk.” His son Eric’s response was it that it was “alpha male personalities” getting together. Trump, his son and his supporters contend: all “just words” and not actions.
As employment lawyers, we are often called upon to provide antiharassment training to supervisors and employees. Indeed, certain states, such as Connecticut, Maine, and California, mandate such training for supervisors of employers of a certain size. Even without an applicable state law mandating such training, employers commonly request such training and mandate it for their managers and employees. During this training, I define how sexual harassment is defined, as the following:
- Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.
- For harassment to be unlawful, it must be “sufficiently severe or pervasive to alter the terms and conditions of the victim’s employment and create an abusive working environment.”
- The harasser’s conduct is evaluated from the objective standpoint of a “reasonable person” and also a subjective standpoint of the employee. Therefore, conduct would need to be offensive to a reasonable person and must also be offensive to the employee.
During sexual harassment training, I typically dispel certain myths of sexual harassment. For example, sexual harassment most typically occurs between men and women, but can also occur between two men and two women. While we hear mostly about harassment by supervisors against subordinates, it can also occur between co-workers and by a third-party against an employee (such as an invited guest, vendor, or client—e.g. Donald Trump on the set of Days of Our Lives in 2005). For an employer to be liable for the harassment of a coworker or a third-party, the employer must have known or should have known of the harassment and failed to take prompt remedial action.
I also explain during training that the victim does not even have to be the intended victim of the harassment, so long as it affects his or her work environment. Therefore, harassing comments made to a coworker about another employee could offend the coworker spoken with or other individuals present (e.g. the bus driver or the other members of the crew who were on the bus). Additionally, if comments were made outside the presence of the victim (such as Arianne Zucker), the victim can still be affected in the workplace. Moreover, a victim could be someone who overhears comments that the harasser did not intend for anyone else to overhear.
I would explain during harassment training that sexual harassment can be physical, visual and can also be verbal. Examples of sexual harassment that is physical could most certainly include “grabbing women by their p[rivate areas]” or kissing them without permission. Examples of visual harassment could include e-mailing inappropriate pornographic images or sending sexually explicit texts. Examples of verbal harassment could be discussing sexual prowess or remarking about an individual’s body or discussing “grabbing women by their p[rivate areas]” or kissing them without permission—“just words”, “locker room talk”, “alpha males getting together.” Again, for harassment to be unlawful, it must be unwelcome and must be “sufficiently severe or pervasive.” If the conduct is severe (typically involves physical touching), it does not have to be pervasive to be actionable. However, for less severe conduct to be actionable it must be pervasive.
I would also make sure to mention during training that excuses like “boys will be boys” or it was “locker room talk” or talk between “alpha males” are not proper legal defenses. Title VII of the Civil Rights Act of 1964 guarantees women the right to work in male dominated industries and workplaces free from discrimination or harassment. Finally, I would explain that it is not acceptable to condone sexual harassment. Everybody shares the responsibility of avoiding sexual harassment by not only refraining from behaviors that are offensive but also reporting sexual harassment as a victim or a witness.
Clearly Trump (and Billy Bush) were absent during their mandatory sexual harassment training. When Trump was a guest on the Days of Our Lives, Billy Bush not only condoned but encouraged Trump.
How can companies either avoid sexual harassment or reduce liability should harassment ever occur in the workplace? There are three main elements of avoiding liability for harassment.
1. Disseminate an anti-harassment policy to all employees. Such policy should include the following:
- The policy should define harassment and govern all forms of unlawful harassment – not just sexual harassment.
- The policy should include a complaint procedure and a means to bypass the alleged harasser.
- The policy should inform the workforce that EVERYONE shares the responsibility for avoiding sexual harassment (yes, that means you, Billy Bush).
2. In the event an employee reports an incident of harassment, employers should immediately, thoroughly and impartially investigate the complaint, without making conclusions until the investigation is completed. Once the investigation is complete and conclusions are reached and if a determination has been reached that sexual harassment occurred, employers should take prompt and appropriate remedial action.
3. Periodically train employees and supervisors upon hire and bi-annually thereafter or more often in accordance with applicable state law.
The infamous recording—clear and uncontroverted direct evidence of the intentional “locker room”/”alpha male” words he used to describe women—should be cause for any employer to think twice before creating any situation where Trump has any unsupervised access to female employees.