HEADS, RETAIL INDUSTRY GROUP Mary Dohner Smith Nashville, TN Anjanette Cabrera New York, NY EXECUTIVE EDITOR Susan Bassford Wilson St. Louis, MO EDITOR IN CHIEF Robin Shea Winston-Salem, NC
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News & Analysis
NEWS & ANALYSIS
What to Do About #MeToo: Preventing and investigating sexual harassment in the workplace
By Susan Bassford Wilson St. Louis Office
If you haven't heard of #MeToo, I can only assume you live under a rock. This viral hashtag has become a rallying point for people denouncing sexual harassment and assault, including everyone from Hollywood stars to your next-door neighbor. All the media attention may lead you to ask what you as an employer need to do to prevent sexual harassment at your company. If so, read on!
The best offense is a good defense
If you want to prevent sexual harassment, you first need to define it. Sexual harassment covers a wide variety of behaviors, from off-color jokes to groping, and from indecent exposure to sexual assault. Most retail employers realize the importance of having a policy prohibiting sex discrimination and harassment.
However, take a look at your current policy. Does it define harassment and discrimination in ways that will be meaningful to your employees? Does it provide one or more methods to report complaints, particularly in situations where the harasser may be the boss? Does it prohibit retaliation against employees who make complaints or provide information in connection with an investigation? Does it a useful summary of the consequences of inappropriate workplace behavior? If not, this is a good time to revise your policy.
Even if your policy is fantastic, do your employees know about it and understand it? When was the last time you had harassment training for employees? Are you confident that your store management knows what to do if someone complains to them about off-color jokes? Does every employee at every level
of your organization understand that repeatedly asking a coworker on a date could cross the line into unlawful harassment?
Employers sometimes tell me that training is time-consuming or expensive. I understand. However, defending a lawsuit is a lot more time-consuming and expensive than conducting harassment training. You will not regret making the time for training.
Let's say that you have a great policy and your employees have been thoroughly trained on it. What happens when Alice comes to you to say that she believes she is being sexually harassed?
First, take all complaints seriously, no matter what you may already know (or think you know) about the employees involved. Even a stopped clock is right twice a day. The fact that Alice has complained six times in the past six months doesn't necessarily mean that complaint number seven is unfounded.
Second, investigate the complaint in accordance with your consistently-applied plan and policy. Although creating an investigative plan may sound like an overwhelming task, the importance of being prepared cannot be overstated. A thoughtful framework not only keeps the investigation on track but is also a helpful way to protect the company from liability if there is litigation in the future. Investigators should be well-trained, detail-oriented, and objective. Administrative leaders and human resources professionals are typically good investigators, though you may also opt to hire an external consultant or attorney if the situation is particularly serious or involves highranking employees. Anyone who is accused of improper conduct, who reports to the alleged harasser directly or indirectly, or who is a material fact witness should not conduct the investigation or make the final investigative determination.
Once you have a plan, execute it. Interview the accused and the accuser as well as any witnesses either person identifies, and any witnesses identified by the witnesses. Document everything. Keep in mind that your main objective at this stage is to get all the information that each individual can give you. When asking questions about the alleged events, get as many details as possible regarding who, what, when, where, why, and how. Asking everyone to write and sign a statement is usually a good idea, unless there is a language or literacy barrier. Ask everyone you interview to identify witnesses or documents that may provide additional information, including personal emails or notes. We live in a digital age, so text messages or pictures on mobile devices may be relevant. Further, if the location is under video surveillance, review (and preserve!) the footage from the relevant time period.
In sexual harassment investigations, you should also assess whether the accused has any reason to believe the conduct was welcome. For example, the accuser and the accused may have had a consensual relationship that's recently gone south. Observe every interviewee's tone of voice, eye contact, and other body language, as it may provide valuable insight into the individual's credibility.
If the accused admits to the behavior, you can usually conclude the investigation and decide the appropriate corrective action to take. (If you have reason to believe that the accused may have harassed other employees, you should continue with the investigation to determine the extent of the harm.)
If the accused refuses to participate in the investigation, let him or her know that the company will base its decision
on the information gathered during the investigation and may draw an inference from the lack of cooperation.
Once the interviews are complete and all the documents and physical evidence have been reviewed, you must decide whether the alleged misconduct actually occurred. This stage is often the most challenging for a company, and consulting with legal counsel may be particularly helpful. Don't jump to the conclusion that nothing happened just because there are no witnesses and the accused denies the allegations. On the other hand, you aren't required to accept unsubstantiated allegations. Even in a "he said, she said" situation, the decisionmaker may be able to come to a determination based on the evidence and the witness statements (if any), and the credibility of the parties.
If there really is no way to determine who is telling the truth, you can always find that the investigation was "inconclusive." But before you do that, look over your investigation one more time and make sure that there are no stones left unturned.
Taking appropriate action
If you determine that misconduct occurred, you must decide what corrective action to take against the accused. In the case of harassment or discrimination, this action must be prompt and reasonably calculated to fix the problem. You should take into account a number of factors, including the severity of the conduct, the number of incidents, and whether there appears to be a pattern of misconduct. Review all relevant company policies and procedures, as well as actions the company has taken in similar situations in the past. Generally, consistency is best, but if you find that your prior actions were too lenient or otherwise ineffective, you may be able to start afresh as long if you have good reasons for doing so and have thoroughly documented your explanation for the change.
If the investigation is inconclusive, or if you affirmatively find that harassment did not occur, notify both the complaining employee and the accused employee. Thank the complaining employee for bringing the matter to your attention and invite him or her to let you know if there are any issues in the future.
Finally, as explained by Constangy's Kristine Sims, don't get mad and don't get even. Even if the company did everything right with respect to preventing and investigating harassment, it can still be liable for retaliation. For this reason, the employer should warn the accused employee not to retaliate against the complaining employee. In addition, the employer should follow up with the complaining employee for several months to ensure there is no further misconduct or retaliation.
Don't be a harasser: It's easy!
Let me leave you with some practical advice to pass along to your employees. To avoid becoming a cautionary #MeToo tale, follow the rules you learned on the playground. Don't touch other people without permission, which includes but is not limited to kissing, grabbing, and licking. "No" really does mean no. Silence is not consent. Don't threaten other people to get them to do something they don't want to do. Don't tell dirty jokes or make offcolor comments. Don't comment about your co-workers' bodies, even if you intend it as a "compliment." Keep your clothes on and fully fastened. If you see someone else being treated badly, tell a responsible adult (your boss, human resources, an attorney). In summary, treat your co-workers the way you would want to be treated
and the way you would want your spouse or child to be treated. If your employees follow these rules, you will be well on your way to avoiding a #MeToo scenario at your company.
SOURCE FOR CHARTS 1-3: U.S. Equal Employment Opportunity Commission. (Fiscal year runs from October 1 through September 30.)
SOURCE FOR CHARTS 4-5: Data compiled by Center for American Progress. Chart 5 is based on EEOC charges where a specific industry was identified (approximately 50 percent of all sexual harassment charges filed with EEOC).
"Does it rhyme with schmexual schmarassment?" Please do check out our latest edition of ConstangyTV's Close-up on Workplace Law, featuring host Leigh Tyson and her guest, Tim Newton of our Atlanta Office. Tim reviews five hot issues for employers to watch in 2018, and, indeed, the number 1 issue does rhyme with "schmexual schmarassment." (How did Leigh know that?) Sexual harassment central. Since the fall of 2017, we've had more sexual harassment coverage than you can shake a stick at. Be sure to read Robin Shea's "What now? The sexual harassment scandals, and what employers can do to protect themselves and their employees." And then, over at our Employment & Labor Insider blog, Robin has "In defense of confidentiality agreements (yes, even in harassment cases)," with the follow-up, "Rep. Meehan's sex harassment settlement proves my points about NDAs." You can also read about the legislation that would ban arbitration in sex bias cases and decide for yourself whether that's a good idea. But wait! There's more! If you haven't already done so, do check out "Don't believe everything you read," "harasser dos and don'ts," and from October, when all of this blew up, "Eight takes on sexual harassment and Harvey Weinstein." Immigration central. It's also been a big season for immigration issues, what with the fight over whether to enact legislation to protect "Dreamers" and how sweeping any protections should be. Will Krasnow has been busy keeping up with it all, but retail employers will be especially interested in his "Employers Beware, and Be Ready: How to prepare for an ICE raid." Will also reminds us that H-1B filing season is upon us, so please contact our Immigration Practice Group as soon as possible if you need to apply for H-1B workers.
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New laws have taken effect in California this year. Nestor Barrero has an excellent summary of the most significant new employment-related laws that took effect in California in 2018. If you have operations there (and who doesn't?), you will want to read it. Speaking of California, welcome to our new Orange County Office, whose opening was announced last month, and to our bevy of new California attorneys.
The U.S. Department of Labor re-issues Opinion Letters. During the Obama Administration, the Wage and Hour Administration of the DOL stopped issuing opinion letters and withdrew some that had been issued during previous administrations. It was a shame, because opinion letters are very helpful to employers who are trying to comply with applicable law. Well, all is well again, because the Trump DOL has resumed the practice of issuing opinion letters and has reinstated some. Jim Coleman, co-chair of our Wage and Hour Practice Group, has the story here.
Don't forget: EEO-1 filing deadline is March 31. For more details and links for electronic filing, check out these blog posts by Robin Shea and Kristine Sims.
And in case you missed these:
Workplace Retaliation: Don't get mad, and don't get even (ConstangyTV interview dated December 18, 2017, featuring guest Kristine Sims)
18 states raise minimum wage in 2018
Quit kickin' HR around
Supreme Court won't review LGBT decision
Three hot regulatory issues for employers to watch
Reasonable accommodation quiz for employers
Constangy, Brooks, Smith & Prophete, LLP Constangy, Brooks, Smith & Prophete offers a wider lens on workplace law. We have counseled employers exclusively since 1946. With offices in 15 states, we are one of the largest labor and employment law practices in the U.S. Constangy has been named as a top firm for women and minorities by organizations including Law360, the National Law Journal and Vault.com. Many of our more than 190 attorneys have been recognized by leading authorities such as Chambers & Partners, Best Lawyers in America and Martindale Hubbell. Find out more about us online at www.constangy.com or follow us on Twitter @
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