Everyone who keeps up with recent news has by now heard numerous stories about the sexual harassment claims against Harvey Weinstein. Other Hollywood figures have also been accused – some of more perhaps more serious harassment, such as the allegations that Kevin Spacey made sexual advances should an individual who was well under the age of consent.
With this news circulating, employers may face more allegations of workplace harassment due to heightened awareness. We recommend employers dust off their harassment policies and ensure they are up-to-date and well-publicized to employees. The following steps are essential to defend against an employee’s claim of workplace sexual harassment:
1. Adopt and publish the employer’s strong policy against workplace sexual harassment. Such a policy may also include a prohibition on other forms of unlawful harassment (including harassment based on age, religion, race, national origin, and other legally protected characteristics). Not having a written policy prohibiting workplace harassment, which may be included in an employee handbook or policy manual, will subject the employer to unnecessary risk and also will leave employees without a good resource or avenue to express concerns about harassment.
2. Include specific discipline to be issued for violations of the policy. The policy ideally will state the employer operates with a zero-tolerance policy, meaning that, in cases where the investigation establishes the harassment occurred, the violator will be discharged. Remember the general rule of industrial relations that the penalty should fit the crime. Where the allegations are similar to those against Harvey Weinstein, discharge is the appropriate penalty. In all cases, the message employees should receive is that the employer does not take such allegations lightly and will respond with significant discipline. Especially in cases involving physical touching or repeated conduct, the penalty should be discharge.
3. Managers and supervisors should be sure to clearly endorse the policy and avoid any suggestion that there is less than total support for every part of the policy. Any suggestion that the policy is meaningless or is not enforced or that it is “selectively enforced” based on who the violator is may result in liability should an employee bring a harassment claim.
4. In employee meetings, at least annually, the policy should be discussed, and employees should be reminded of the policy and its contents. A best practice is to have employee training regularly that emphasizes the contents of the policy, provides examples of workplace harassment, and advises employees to immediately report any concerns to Human Resources. Having a policy that is disseminated, and having employees trained regularly on the reporting procedure, can help an employer’s defense of a harassment claim if the employee does not use the reporting procedure.
5. Ensure that investigators (generally Human Resources professionals) conduct thorough and fair investigations into allegations of unlawful harassment. Each investigation should be well-documented and the information kept as confidential as possible. Every witness named by both the complainant and the accused should be interviewed. Care should be taken to conduct the investigation promptly but not at the expense of thoroughness.
6. Make sure the policy has a non-retaliation provision and follow it. One of the most precarious legal situations an employer can face is one in which an employee has made a claim of harassment and that employee is discharged within a short time period after the complaint is made. Regardless of whether the employee was on thin ice due to performance or attendance issues prior to making the complaint, the timing of any discipline after a harassment complaint is very significant. Employers should ensure proper steps are taken to protect any employee from retaliation for complaining of harassment and/or participating in a harassment investigation, as a witness or otherwise.
7. Never advise the complainant that he/she must keep the complaint “confidential.” As a general rule, non-supervisory employees have a right to discuss terms and conditions of employment under the National Labor Relations Act and discussing a complaint of harassment with co-workers would be protected under the NLRA. However, the investigators should keep the information obtained during the investigation as confidential as possible.
There are no steps that stop harassment from ever occurring in the workplace, but following the guidelines above will help avoid harassment in the workplace. Should incidents occur, the guidelines are vital for a strong defense by showing the employer had a well publicized policy and reporting procedure and that the employer takes such claims seriously and takes prompt, appropriate remedial action when a complaint is made.
If you have any questions regarding the harassment policies or would like us to review and update your policy, please contact any of the lawyers on Lowenbaum Law’s employment law team, including Whitney Cooney, Karen Milner, or Jamie Westbrook.