Although the #MeToo movement has brought to the forefront allegations of sexual harassment in the workplace, the issue is not limited to the bright lights of Hollywood or the newsroom. All employers, of any size and in any industry, must be aware of harassment in the workplace. The attention that the media has brought to workplace harassment may have several consequences. Employers may see an increase in the number of allegations of harassment, and perhaps a spike in jury awards where harassment liability is found. In addition, state and local governments may enact laws that impact employers who face harassment claims. This combination should encourage employers to act early to avoid harassment allegations.
Update Your Company’s Anti-Harassment Policy
While most employers have an anti-harassment policy in place, it should be reviewed and updated at least annually. Even if there are no major changes to the law since the policy’s last review, other important societal changes (for instance, the prevalence of social media use) may need to be addressed. Employees should be provided the policy and acknowledge its receipt in writing.
A harassment policy that sits idly is of little value if employees are not aware of the policy and their obligations under it. All employees should be educated on the anti-harassment policy. In particular, supervisors should be well-versed on their responsibilities and potential liability for engaging in harassment or failing to report concerns of harassment. In some jurisdictions, training is mandatory. Due to the current environment, we suggest that now is a good time to review the company’s policy, make any needed revisions and conduct anti-harassment training, which should be repeated every two years.
Review Reporting Structure and Be Prepared to Investigate
An employer’s “reporting structure” is the internal mechanism that enables employees to report harassment. For example, some companies have anonymous hotlines, some require that incidents be reported to Human Resources and others direct employees to report up the chain of command. There are even phone apps that can be used to report harassment. The goal is to make it easy for employees to complain. And, when a report does come in, the designated individuals should be fully trained and prepared to respond promptly.
Watch for Legal Developments
Several states are contemplating legislation in the wake of recent sexual harassment headlines. New York, California, New Jersey, Pennsylvania, South Carolina and Washington are considering passing laws that limit the use of nondisclosure and mandatory arbitration clauses in employment contracts and settlement agreements. Proponents of such laws argue that the use of these types of clauses keeps bad behavior out of the public eye and doesn’t effectuate widespread change. Opponents suggest that without private mediation, employers and employees will be forced to make very private subject matter public. We will monitor legal developments in this area and provide updates as they become available.