Don't Let Your Business Get Caught in the Sexual Harassment Flood

Businesses of all sizes should be concerned with the recent tidal wave of sexual harassment claims. Since the initiation of the “#MeToo” campaign, the EEOC has seen a dramatic rise in harassment filings, and those claims are not limited to Hollywood or celebrities.

So what can businesses do to avoid this expanding legal and financial exposure? There are a number of steps which should be taken immediately:

1. Update Your Policies. If you have not had your harassment and retaliation policies reviewed and updated by a professional in the past two years, now is the time to do so. There have been many recent changes in state and federal harassment and retaliation rules which should be incorporated into your personnel policies. If you do not currently have harassment and retaliation policies, request assistance in developing and implementing them immediately.
2. Update Your Internal Procedures. An effective harassment policy must be supported by an understandable, effective, and timely internal investigation procedure. Even if you have never had a harassment complaint from an employee, it is critical that you examine your procedures for compliance with the new investigation rules. In fact, the lack of any complaints could signal an ineffective policy, which employees are either afraid of using or consider to be a waste of time based on past experience, or it could signal that employees are simply unaware of the policy. Don’t assume that a lack of complaints reflects a harassment-free workplace.
3. Obtain Executive Buy-In. Harassment policies will not be effective if there is no buy-in from the top. All members of management, from owners to front-line supervisors, should demonstrate full buy-in with the prohibitions and expectations of the policies. A zero-tolerance policy will be completely ineffective if managers are not setting the example or are engaging in inappropriate conduct themselves. Employees will not take the policies seriously if the top brass are not in attendance, front and center, at the training sessions. Executives must allocate sufficient funding for legal compliance in the annual budget process. Businesses must not only “talk the talk,” they must “walk the walk.”
4. Conduct Effective Training. Ineffective training has been identified as a prime factor in the failure to eradicate harassment from our workplaces. Businesses need to initiate new training concepts to comply with the new harassment rules.
   • Training Must Be Interactive. Courts have repeatedly chastised employers for relying solely on “canned” or videotaped harassment training, some of which were created years or decades ago. Employers must be prepared to engage employees with customized training which references the employer’s particular policies and complaint and investigation processes. Face-to-face training by a professional who is familiar with the new harassment laws is the preferred model. Employees should be able to ask questions and interact with other segments of the workforce to ensure there is a consistent understanding of the policies and expectations among all groups. Training should also be repeated, at least every two years, to ensure that employees are continuously aware of the expectations of a harassment-free work environment and examples of behaviors that are acceptable and unacceptable in the workplace. Employees should be required to attend to retain their employment, and the employer should maintain accurate records of the attendees and materials presented at the training.
   • Supervisors Must Have Additional Training. In addition to attending all-employee training, the supervisory group must receive specialized training in recognizing inappropriate conduct (even if a complaint has not arisen), in demonstrating proper conduct to their subordinates, in responding to complaints, in recognizing when an employee is complaining of inappropriate conduct, and in recognizing and preventing retaliatory behavior.
   • Investigators Must Have Specialized Training. Those individuals who will serve as investigators of harassment complaints must not only participate in the all-employee and supervisor training, they must also receive specialized training on rules relating to complaint investigation processes. These include understanding the boundaries of confidentiality rules, conducting interviews, gathering information and evidence, the standards used for the ultimate determination, how to avoid reverse-discrimination claims, and the legal principles applicable to corrective actions following a finding of harassing conduct.

Businesses who ignore effective prevention measures are setting themselves up for eventual problems, which can have a devastating impact, not only on their immediate finances, but on their long-term reputations and public images, as so many individuals and companies have recently discovered. The time to act is now. Additional guidance or assistance may be obtained from the LCOJ Employment Team.

Written By:
Attorney Gregory A. Grobe