Dear Clients, Colleagues and Friends:
The year 2017 marked a seismic shift in the way the nation views sexual harassment. Time Magazine named “the silence breakers” as its Persons of the Year. The words “me too” went from a simple phrase, to a hashtag, to a movement. And, a deluge of claims of sexual misconduct and harassment exposed and toppled the giants of Hollywood, the news media, government, and so many other high profile industries. While some employers may take comfort in the fact that the stories of sexual misconduct and harassment that dominate the news involve the rich, the famous and the powerful, it is extremely naïve to assume that the aftershock-shock effects of the recent torrent of sexual harassment claims will not impact all employers in 2018 — even those smaller employers who operate in mundane industries.
As you reflect on the past year and make plans for a new one, it is a good time for all employers to take a hard look at the measures you take to both provide your employees with a harassment free workplace and insulate your company from liability for workplace harassment claims. Since resolution-making season is upon us, consider making these 5 resolutions to start your 2018 harassment-free.
Resolution 1. Start With The Written Policies and Procedures.
Most employers know that it is necessary to have a written policy prohibiting harassment, discrimination and retaliation in the workplace. Such policies communicate to employees the behavior that will not be tolerated in the workplace and can be useful tools to defense attorneys trying to shield an employer from liability for claims of harassment. You probably have such policy as part of an employee handbook and distribute it to your employees when they start their employment. That is good. You probably require your employees to acknowledge receipt of the policy and keep a copy of their acknowledgement in the employee’s personnel file. That is also good. But, simply having a written policy and making an employee acknowledge receipt will not guarantee a harassment-free work environment for your employees or absolve your company from liability for potential workplace harassment claims. To be effective, the policy also needs to be regularly updated and effectively communicated to your employees.
Because the case law regarding workplace harassment claims is constantly evolving and laws change all the time, we recommend that written policies be reviewed by legal counsel on a yearly basis to make sure they comply with current laws. But complying with current law is only one aspect. Your written policies also have to be updated to reflect the reality of the world and business in which your company operates. Does your policy mention text messages, social media or other forms of electronic communications? If the answer is no, it is time to update your policy. Does the policy address harassment which takes place off-premises, at company sponsored social events and during business-related travel need to be updated? If the answer is no, it is time to update the policy. Does your policy address all forms of harassment? While sexual harassment often gets the most attention, harassment on the basis of many other protected characteristics also is unlawful (including race, gender, gender identity or expression, religion, age, national origin, disability, sexual orientation, and the list goes on…). Does the policy reflect your correct office, address, e-mail, phone number and person to whom an employee can file a complaint of harassment? If your policy designates Mary Jones (who resigned from the company 2 years ago) as the person to whom employees should bring their complaints or tells employees to deliver their complaints to the human resource office in a building that no longer exists, it is time to update the policy.
In addition to regular updating, you also need to regularly distribute the written policies to your employees. A written policy that is distributed to an employee only at the start of their employment is likely going to collect dust at the bottom of a desk drawer, remain hidden in some dark corner of a company intra-net page, or get tossed into a recycling can. Regular distribution of your written policies will help ensure that your employees remain aware that a policy exists and understand that your company takes the policy seriously.
Resolution 2. Train, Train, Train.
While updating and distributing written policies prohibiting harassment is a good first step, you are not likely to achieve a harassment-free workplace or protect your company against potential workplace harassment claims if it is your only step. Would you require an employee to operate a drill press or run a new software program by simply giving the employee written instructions? Of course you would not. The same goes for workplace conduct. You have to do more than just provide employes with written policies prohibiting harassment. You also have to train your employees in what the written policies say, what the policies mean, and how your company expects its employees to conduct themselves in your workplace.
Supervisors, managers and executives need to receive special harassment training. They not only need to know how to conduct themselves in the workplace, they also need to know how to enforce the policies. This means they need to know what to do when an employe complains, what to do when they witness or otherwise become aware of harassment, and how to manage employees who have complained of or been accused of harassment.
Some states like California, Connecticut and Maine mandate employers to conduct harassment training. The EEOC strongly encourages employers to provide sexual harassment training to employees as part of its sexual harassment prevention program. And, given the current climate, training makes sense and is an effective tool to preventing workplace harassment and insulating potential liability.
However, many employers resist training. The cost of training is not in our budget this year. The cost of training will pale in comparison to what you will spend in legal fees if you are sued for harassment. It is too logistically complicated to get all of our employees together for training. The logistics involved in organizing employees for training are nothing compared to the resources you will need to dedicate to gather documents and prepare for depositions if you are sued. But, if we train our employees, they will get “ideas” and be motivated to sue us. Today’s climate and the constant barrage of news stories revealing workplace harassment claims have already given your employees all the fodder they need to file harassment claims. Your failure to train your employees will only enhance those claims.
Resolution 3- Investigate.
Given today’s environment, there is a strong chance your company will receive at least one complaint of workplace harassment in 2018. Does that mean you need to fire every employee who is accused of harassment? No. While some of the complaints you receive may have merit, many may not. Regardless, you should investigate every complaint of workplace harassment you receive – even those complaints that emerge from the employee who complains just about everything, the employee who has been disciplined for performance or the employee who tells you they don’t want you to investigate.
Your failure to properly investigate a complaint of harassment (even a meritless claim) can be damaging. It can and will hurt you in defending against a meritless claim. It may also cause you to neglect to correct real harassment that may be taking place in your workplace. And, it may have a chilling effect on those employees who have claims but don’t bring them to your attention because they assume you won’t do anything about it. Because the way in which you handle an investigation is critical and because workplace harassment investigations are often complex, they should typically be performed by human resource professionals who are trained to conduct such investigation or done by or with the assistance of legal counsel.
Resolution 4 – Open Your Eyes, Your Ears and Your Doors.
The stories of sexual misconduct and harassment that were revealed in 2017 followed two common patterns. First, the boards of directors and the executives feigned shock and ignorance when the faces of their brands were accused of egregious sexual misconduct and harassment. We are shocked by these allegations. This is the first complaint we ever received. We had no idea the bad behavior was happening, and etc… Second, those cries of shock and ignorance were quickly undercut. Indeed, each complaint of bad behavior was followed by another, and then another, and then another, and so on. And each complaint was rapidly followed by employees and former employees clogging social media with anecdotes of how the alleged misconduct was the worst kept secret in their particular industry.
The biggest lesson you should learn from the harassment fallout of 2017 is that ignorance of harassment is not going to be tolerated. While for decades, employers have been held to a “known or should have known” standard of liability in workplace harassment claims, many employers fail to understand that they can be on the hook not just for the harassment that is brought to their attention, but also harassment which they should have known about.
So how do you protect yourself against a “should have known” standard? In addition to implementing written policies and conducting training, you have to open your eyes, your ears and your doors and both know and address what’s going on in your workplace. If you’ve heard rumblings about “that guy in purchasing who does x, y or z”, or there is that your gut tells you something isn’t sitting right with “that new employee in the mailroom”, don’t hide in your office, contact human resources and start to address the issue.
You also need to address harassment – even the harassment that doesn’t seem to be that big a deal. If you hear an inappropriate joke or see an inappropriate glance, don’t chalk it up as nothing or write it off because no one seemed to be bothered by it. Nip it in the bud. Tell the employee that the conduct is not acceptable in your workplace. If you don’t address the conduct while it is small, it will inevitably fester and lead to something big.
Resolution 5- Be On Your Best Behavior – A Harassment Free Workplace Starts At The Top
Everyone from the top of your organization on down needs to be committed to a harassment free workplace and exhibit behavior that that is consistent with that commitment. Employees (and plaintiff’s attorneys) are going to be gunning for the top, especially after seeing the unfolding of so many stories that exposed sexual harassment at the highest levels of major organizations. Now, you may take solace in the fact that the people who run your organizations are probably good people who would never engage in the egregious sexual misconduct of which so many were accused in 2017. But not having a sexual predator running your company does not mean you have a harassment free workplace or that your highest level executives won’t be sued for harassment.
The people at the top have to be on their best behavior and set the tone for everyone else in the organization. That means they can’t tell inappropriate jokes (even if people laugh at them). They can’t use slurs, epithets or other inappropriate language (even if employees don’t seem to mind when they do). They can’t leer or touch or engage in sexual banter (even if they are just being playful). And, if you have a problem at the top of your organization, you must address it. It is not an easy decision to fire or discipline someone who is making money or helping your organization grow. But if that person is engaging in harassment, difficult decisions may have to be made, not just to avoid the legal exposure of a potential lawsuit, but, in light of today’s environment, to avoid the damage to your business if the harassment is exposed.
In sum, we do not yet know the full impact of the fallout of the harassment claims which were revealed in 2017. But, if you start by taking a hard look at your efforts to prevent harassment and adopt these resolutions, you could be on your way to a harassment free 2018.
Wishing you a wonderful holiday and a happy, healthy and harassment free New Year.