The stunning revelations from Hollywood, the Media and Washington have clearly signaled that sexual harassment remains a serious social issue. Millions of people have now used the hashtag “#metoo” to express their own harassment experiences. This new and powerful social movement is not likely to go away any time soon. So now is a good time to revisit what sexual harassment is and what employers should be doing to prevent it, address it and help protect themselves from potential liability.
TYPES OF HARASSMENT
Two types of sexual harassment exist. “Quid pro quo” sexual harassment is limited to acts committed by supervisors and managers. This harassment includes requests for sexual favors as a term or condition of employment or used as a basis for employment decisions. For example, quid pro quo sexual harassment occurs when a person in power demands sexual favors in exchange for a promotion, or to avoid unwanted tasks or projects, or takes some form of “tangible employment action” based on the victim’s rejection or acquiescence. Employers are strictly liable for this type of harassment because the perpetrator used the authority the employer vested in him or her to further unlawful conduct.
“Hostile work environment” harassment can be created through sexual jokes, comments or emails, and through unwanted touching or even sexual assault. A “hostile work environment” occurs when a reasonable person would consider it intimidating, hostile or abusive. Supervisors, managers, co-workers or even third parties can create a “hostile work environment.” Employers are liable when they knew or should have known of the offensive conduct and failed to take action to prevent or remedy it. Courts are increasingly strict when evaluating an employer’s “ignorance defense” (when an employer claims it did not know that a hostile environment existed). Employers can be held liable if leaders had knowledge of the offensive conduct.
The phrase “an ounce of prevention is better than a pound of cure” applies when it comes to harassment. Here are things employers should consider:
Policy and Training
Make sure your organization has an up-to-date harassment policy and effective training for both employees and supervisors.
The Equal Employment Opportunity Commission (EEOC) says that it is “critical” for employers to distribute a written harassment policy. The policy should clearly explain the types of prohibited conduct. The policy should state that the employer will not tolerate sexual harassment or other forms of illegal harassment or discrimination.
The prohibition against a hostile work environment should address harassment committed by anyone in the workplace, including executives, managers, co-workers and non-employees. The policy should include definitions and examples of harassment and clearly communicate that the employer has zero tolerance for all types of workplace discrimination or harassment (e.g., race, religion, national origin, disability, etc.).
The policy also should explain the complaint procedure and explain the duty to report harassment. The policy should encourage complaints and remove potential obstacles from the reporting process by including multiple reporting channels. It also should include a prohibition on retaliation for reporting harassment or participating in an investigation. Although confidentiality is important, the policy should not promise absolute confidentiality because that may be inconsistent with the obligation to conduct a full investigation.
To ensure that the policy is communicated correctly every employee should be provided a copy of the harassment policy at the time of hire. The policy also should be posted or distributed at least once a year.
Periodic harassment training is important. If a harassment claim is filed, the fact that your organization required training helps demonstrate that you took reasonable steps to prevent harassment. A top-down commitment is critical to effective training. If employees do not believe that the organization is serious about preventing harassment, the training may be viewed as another “check the box” event. Effective training may include bringing in a third party to conduct the training. An independent trainer may help convey the seriousness of the policy.
Investigating a Complaint
It is critical to effectively investigate harassment complaints and promptly intervene when one is raised. It is imperative to take all complaints seriously and promptly address any harassing behavior that occurred. At times, it may be best to have an independent party conduct an investigation, especially if the accused is an executive or manager, or if the alleged harassing behavior is especially severe. Effective and immediate intervention also serves to minimize the injury to the victim.
Responding to Legal Action
An employee can make a harassment complaint to the federal Equal Employment Opportunity Commission (EEOC) or the Michigan Department of Civil Rights (MDCR). On November 1, 2017, the EEOC launched an online Public Portal. The EEOC Public Portal allows an individual to digitally sign and file a charge of discrimination. The new EEOC Public Portal will make it easier than ever for individuals to make a charge of discrimination.
The EEOC and MDCR will notify the employer when a charge is filed. The employer is often invited to submit a written position statement to the agency. This is the employer’s opportunity to set forth its best arguments. It is strongly recommended that an employer seek legal assistance to respond to a charge.
During its 2016 fiscal year, the EEOC took in over 6,750 complaints of sexual harassment. In nearly 60% of those matters, the EEOC found no reasonable cause that discrimination had occurred. But in over 1,700 cases, the EEOC secured a total of over $40 million in monetary benefits.
If a matter is not resolved through an agency like the EEOC or MDCR, the matter may proceed to federal or state court. Michigan is one of the few states that does not require an employee to file a charge with the EEOC or MDCR before filing a lawsuit. The litigation process is complex, time consuming and expensive. Accordingly, an effective policy, training and complaint processing system are critical to avoiding litigation.
The “#metoo” movement has also captured Congress’ attention. The new tax bill eliminates employer tax deductions for sexual harassment settlements and related attorney fees if the settlement agreement contains a nondisclosure provision. This was likely driven by the belief that confidentiality clauses in these kinds of matters help promote a culture of sexual harassment by keeping the consequence of improper behavior hidden. Note that the loss of the deduction does not apply to agreements with confidentiality clauses settling other complaints of harassment or discrimination.
Workplace harassment costs employers millions of dollars every year through poor employee morale, higher absenteeism, reduced productivity and costly settlements and lawsuits. Employers need to create the right culture, supported by appropriate policies and training. If a complaint is made, it needs to be properly investigated and resolved. Your Warner labor and employment attorneys can help with each of these aspects.