The sexual harassment issue has been with us for decades, but the rising chorus of complaints about workplace sexual harassment and sexual misconduct by Hollywood moguls, business executives and politicians is hitting a new crescendo today that requires employers to review whether and how effectively they are addressing the problem.
Employers can take simple actions to protect their employees from harassment and themselves from the heavy business and legal consequences that these claims carry. Best practice on this issue has three discrete, though related, parts.
The first is prevention. The second is unearthing and remedying harassment in a way that addresses the legitimate concerns of the complaining employee and the company. The third is responding to a complaint asserted to authorities outside the company.
Prevention consists of training and maintaining an appropriate workplace atmosphere. Sexual harassment training is critical. Many of us seem to have lost sight of basic courtesy. Requesting sexual favors in return for job benefits — quid pro quo harassment — or subjecting employees to a chorus of sex-laced jokes, innuendos, posted cartoons and the like — environmental harassment — are both in bad taste and illegal, period.
Training should clearly explain what conduct will not be tolerated, not just in terms of what is legal but by what demonstrates the company’s respect for its employees. Training should specify that penalties, even sometimes including termination, will be imposed on violators. Training should be reinforced with periodic reminders of the rules and principles that ban sex harassment. Managers should be directed to address problematic behavior they observe before any complaint arises. A manager’s quiet admonition that someone’s speech or behavior is not okay in the workplace can save a world of trouble.
An employer needs an effective complaint and investigation procedure, not an ad hoc, amateurish response devised in the heat of the moment a complaint arises. Alternate avenues of complaint should allow an employee to bypass the alleged harasser, no matter who that might be. The person assigned to investigate the claim should know the proper procedure for doing so fairly and impartially. Often the best course is to hire outside investigators.
Confidentiality for the complaining employee is a thorny issue, since the accused must have an opportunity to understand and respond to the charges. While one federal agency has generally endorsed confidentiality for the accuser, another has been very critical of it. Employers should afford the complainant as much confidentiality as possible and enforce a zero-tolerance nonretaliation rule to protect anyone who complains, even mistakenly, or participates in an investigation. This protection from adverse consequences is essential to an effective process that will enable the employer to fix real problems in this area.
Finally, if investigation establishes harassment occurred, a quick and appropriate remedy must follow.
OUTSIDE THE COMPANY
No matter how effective training might be or how sensitive and sophisticated the internal complaint and investigatory process, it is still possible that an employee will file an administrative charge and lawsuit against the employer. In this event, the company is defending the integrity of its training and complaint process as well, possibly, as the integrity of an innocent accused.
First, of course, the company should involve its insurer. Hopefully, employment practices liability insurance will cover the claim.
Second, legal counsel should be retained earlier rather than later, as guidance during the early administrative process will many times preserve options for subsequent courthouse litigation. If lawyers investigated the in-house complaint, they could be witnesses in the lawsuit, so different counsel may need to be retained.
Third, with counsel, develop a comprehensive, long-term strategy for dealing with the case. Is settlement appropriate? What will be the impact of the suit or a settlement on the workforce as a whole? Will there be any harmful public relations fallout that needs to be addressed? All of these factors and more need to be considered and planned for.
Considering the sexual harassment problem in terms of this three-stage analysis will not guarantee that no claims will arise, but it will go a long way to ensure that they will be dealt with as early and fairly as possible.
Robert B. Mitchell is a founding principal and attorney specializing in employment and labor law at Mitchell & Sheahan P.C. in Stratford. He can be reached at 203-873-0240 or firstname.lastname@example.org.