Responding to Sexual Harassment Claims in the #MeToo Movement

Written by: Kathy Feldman, KTC Employment Attorney

TIME Magazine just announced its 2017 Person of the Year:  The Silence Breakers.  It seems one cannot go a single day without hearing allegations of harassment by the likes of Weinstein, Franken, and Spacey.  Beginning with Gretchen Carlson, women and men are speaking publicly about decades of abuse they have endured at the hands of those more powerful or well-connected than they.   The #MeToo movement on social media has brought the airing of abuse from the famous among us to ordinary people who have faced all manner of harassment in their work and personal lives. All employers should take note.  The pervasiveness of this problem ensures that no workplace is immune from the fallout of reprehensible behavior.

The law prohibiting sexual harassment has not substantially changed in the last thirty years. Nor has the underlying conduct that constitutes sexual harassment changed. What is vastly different today is the remarkable number of victims who are speaking out, the deserved attention they are receiving, and the new demands for accountability.

These revelations are a wake-up call to companies that a corporate culture in which harassment is tolerated must not be allowed.  In 2016, the Equal Employment Opportunity Commission convened a task force to evaluate harassment in the workplace.  It found that each year there are at least 12,000 charges of workplace harassment and that too often most of these events go unreported. As more victims come forward, businesses face greater risk if they ignore complaints and fail to act promptly.

The EEOC identified five core principles that have proven effective in preventing and addressing harassment:

·        Committed and engaged leadership;

·        Consistent and demonstrated accountability;

·        Strong and comprehensive harassment policies;

·        Trusted and accessible complaint procedures and;

·        Regular, interactive training tailored to the audience and organization

Comprehensive and Effective Harassment Policy

The cornerstone of a successful harassment prevention strategy is the consistent and demonstrated commitment of senior leaders to create and maintain a culture in which harassment is not tolerated. This means that employers must clearly, frequently, and unequivocally state that harassment is prohibited. The anti-harassment policy needs to define the prohibited conduct and give examples of what is a violation of the policy. Employers must be clear that all forms of harassment based on any protected class, including sex, are prohibited. Now, more than ever, employees must be told that inappropriate conduct is more than likely to result in disciplinary action, including possible termination.

There are several steps you can take to strengthen your anti-sexual harassment program.  Make sure that employees are encouraged to report conduct that they believe may be prohibited harassment, even if they are not sure that the conduct violates the policy.  Communicate to employees that the company will provide a prompt, impartial, and thorough investigation and that employees are encouraged to participate in investigations regarding alleged harassment. Emphasize that retaliation is prohibited and that employees who participate in the investigation will not be subject to retaliation. Without a policy against retaliation, people with legitimate complaints may not step forward because of a fear of reprisal. Retaliation does not just include terminating or suspending an employee, but includes any adverse action taken against the employee – from reduction in pay to changed assignments to demotions. Retaliation can also include co-workers who were not directly involved in the harassment complaint. Co-workers often take sides in a harassment “dispute,” and this can lead to harassing behavior including threats, uncooperative behavior, physical actions, or the “silent treatment.”

An effective harassment complaint system must provide employees with multiple ways to report a complaint, which can include the human resources department, the employee’s manager, or the president or CEO. Some employers also provide a process, such as a phone line or website, that allows employees to ask questions or share concerns about harassment anonymously or be identified, at their discretion. If a manager or supervisor is aware that harassment is occurring but ignores the problem, there will be liability ramifications.

Effective Harassment Training

Having an anti-harassment policy is only the starting point. Employers must make sure that supervisors are able to identify sexually harassing behavior, know how to stop it and report it.  Employers must regularly and effectively train all employees about the harassment policy, prohibited conduct, general workplace civility, anti-bullying and bystander intervention. The training should be interactive, comprehensive and provided to employees at every level and location of the business. Human resource professionals should also be trained on how to conduct thorough and effective investigations.

Places of Public Accommodation

Businesses operating as places of public accommodation should also be alert to possible claims of sexual harassment brought by a member of the public who interacts with its employees. The Washington Court of Appeals recently found that the Washington Law Against Discrimination recognizes a patron’s right to be free from sexual harassment by an employee of a place of public accommodation.  Companies operating places of public accommodation may now be found liable for harassing conduct of their employees against a member of the public. If your business receives such a complaint treat the complaint seriously and promptly investigate the claim.  In addition, you should broaden your employee training to include scenarios where your employees interact with the public.

Key Takeaways From the Movement

This is an opportunity for every business, whatever your size, to emphasize the importance of respect in the workplace and make it clear that harassment won’t be tolerated. The time is now to revamp your company policies to protect your company and its workers for the 2018 year. Reach out to your KTC employment attorney who can help you navigate through these challenges and provide you proactive measures to decrease the risk of workplace sexual harassment. Our services include, but are not limited to: interactive on-site sexual harassment training, review and updating of company’s handbook and sexual harassment policies, and access to Title IX-certified attorneys who can guide you through internal investigations should misconduct occur.

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