Harvey Weinstein. Bill O’Reilly. Kevin Spacey. The rapid pace of sexual harassment allegations against high-profile figures in recent weeks could make an observer think that sexual harassment is an issue confined to the entertainment industry, the media, sports, and politics.
That observer would be wrong.
According to a recent poll from NBC News and the Wall Street Journal, nearly half of all women currently employed in the United States – 48% – report having been sexually harassed at work.
Sexual harassment claims can be costly for employers. The Equal Employment Opportunity Commission reported that for fiscal year 2016, it recovered more than $40 million for individuals who alleged that they had been sexually harassed at work (and this doesn’t include lawsuits in which the EEOC is not involved). Most of these recoveries were not from “high-profile” industries. Consider a few examples of the types of employers from which the EEOC recovered money in recent years:
- A judge ordered a food processing company to pay almost $1.5 million in damages to a class of female employees who alleged that the company allowed male supervisors to condition promotions and employment on sexual favors, make continuous sexual advances, stalk female employees, and engage in unwanted physical touching and leering.
- A precious metals dealer agreed to pay $725,000 to settle a five-plaintiff sexual harassment case in which the company’s owner allegedly made lewd sexual comments to and about his female employees and bullied and screamed at them.
- A jury awarded $250,000 in compensatory damages to a former employee of a national wholesale chain who, despite her complaints to management, was harassed and stalked by a customer for more than a year.
The point is that sexual harassment can happen in any workplace. How an employer responds to the allegations can determine whether it will be liable for the harassment of one of its employees. Employers have a duty to try to stop sexual harassment before it occurs or, if that is not possible, to take prompt remedial action upon learning of sexual harassment allegations. The cornerstone of fulfilling these obligations is having a robust anti-harassment policy and complaint procedure. Such a policy is also a necessary component of a defense to a lawsuit in which a supervisor is alleged to have created a hostile work environment that does not result in a tangible employment action. At a minimum, such a policy should contain the following elements:
- A clear explanation of prohibited conduct. This includes not only prohibited sexual conduct, but harassment based on any protected characteristic, e.g., religion, disability, race, or age. Harassment may also be perpetrated by someone of the same sex or by a non-employee, e.g., a customer of the employer.
- Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation. The individual who investigates an employee’s complaint should remind all parties and witnesses of the prohibition against retaliation, and should follow up with the complaining employee after the investigation has concluded to ensure that he or she has not experienced retaliation.
- A clearly described complaint process that provides accessible avenues of complaint. Having multiple individuals who can receive employees’ complaints – including someone outside the employees’ “chain of command” – is important. For instance, if employees are expected to approach their supervisor with concerns about harassment, and the supervisor is the alleged harasser, the employees need an alternative avenue to bring their complaints since they likely will not wish to confront their supervisors.
- Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible. Employers should not guarantee complete confidentiality, since they may need to divulge certain information to the alleged harasser and potential witnesses to conduct an effective investigation. Further, it is critical to ensure that employees understand that a request not to investigate a harassment complaint cannot be honored, since employers have a duty to prevent and correct harassment.
- A complaint process that provides a prompt, thorough, and impartial investigation. Examples abound of cases where employers who acted promptly to investigate allegations of harassment and correct misconduct were able to avoid liability. Examples of the converse abound as well. The obligation to conduct a prompt, thorough, and impartial investigation is owed not only to the complainant, but to the accused as well. Employers need to be cognizant of any and all process due to the accused – whether pursuant to CBA, individual contract, law or ordinance, or formal policy – and ensure that they comply with these safeguards.
- Interim measures during the investigation, where warranted. At the outset of an investigation, the employee(s) conducting the investigation should determine whether any temporary measures need to be taken to separate the complaining employee from the alleged harasser during the investigation. If such measures are called for, employers should avoid involuntarily transferring or otherwise burdening the complaining employee, since such measures could constitute unlawful retaliation. Further, they should take all steps necessary to preserve evidence. This is particularly important in the age of social media, where posts and chats can expire or be deleted.
- Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred. Remedial measures should stop the harassment, correct the effects of the harassment, and ensure that the harassment does not recur. Importantly, these corrective measures need not be what the complaining employee prefers – they just need to be effective.
- Accusations against executives. In any investigation employers need to ensure that human resources (or whichever unit is tasked with conducting the investigation) is vested with the requisite independence and authority to conduct a thorough, impartial investigation. At some point, however, even these internal safeguards may not be sufficient, as may be the case with allegations against CEOs or other high-ranking individuals. At that point, the employer needs to determine whether the investigation should be delegated to a third-party entity to ensure that the results of the investigation – whatever they may be – are accepted as legitimate and credible.
Further, several states require employers to conduct anti-harassment training. Even where not mandated by law, it is a best practice to conduct training, particularly for supervisors, managers, and human resources personnel. Supervisors need to know what to look for and how to respond to a harassment complaint. For example, an employee may ask her supervisor not to escalate her complaint because she is “just venting.” If that supervisor honors his employee’s request, he could be setting the company up to face liability down the road.
Sexual harassment is not a new problem, but the media’s attention to the issue in recent weeks has focused the spotlight on employers in a way we have not seen in recent memory. Employers are urged to take this opportunity to review their policies and training practices to ensure they compliant and that they are prepared to effectively respond to harassment complaints.