Preventing and Responding to Workplace Sexual Harassment in the #MeToo Era

by Sheila Gladstone and Ashley Thomas

Unless you were hiding under a rock in 2017, you must be aware of the tidal wave of allegations of sexual harassment by celebrities and other high-powered public figures that have resulted in firings, resignations, and public outcry to change attitudes as to what is considered acceptable behavior in the workplace. The #MeToo internet phenomenon emerged in its wake, serving as a call-out to victims of sexual harassment to raise awareness by sharing their stories on social media using the viral hashtag.

Given the renewed focus on workplace harassment, employers should be ready to prevent and respond to complaints in a swift and thorough manner, not only because it is the right thing to do, but also because all employers with 15 or more employees have a legal responsibility under Title VII of the Civil Rights Act to provide their employees with a workplace free of harassment and retaliation. Workplace sexual harassment has high monetary costs through charges and litigation (the Equal Employment Opportunity Commission collected over $40 million from employers in 2016 just on sexual harassment claims!), as well as significant indirect costs to the health and productivity of your employees, your turnover rate, and the reputation of your organization. The following is brief guidance on how to prevent workplace sexual harassment and how to respond when you receive a complaint:

1. Review your anti-harassment policy to ensure it has a strong statement against workplace harassment and clear reporting procedures.

Your organization should have an anti-harassment policy that includes a clear statement that sexual harassment is prohibited and that such conduct is unlawful. The statement should inform employees that if they engage in harassment, whether a manager, supervisor, or employee, they will be subject to disciplinary action, up to and including termination.

The policy should define sexual harassment as (i) unwelcome sexual advances; (ii) requests for sexual favors; and/or (iii) other verbal or physical conduct of a sexual nature when submission to the conduct is a term or condition of employment, is used as a basis for employment decisions, interferes with the employee’s work performance, or creates an intimidating, hostile, or offensive work environment. The policy should provide examples of verbal, physical, and visual conduct that constitutes sexual harassment, while cautioning employees that the examples are not all inclusive. The policy must inform employees that they will not be retaliated against for complaining of harassment, reporting harassing behavior, or for participating in an investigation regarding a harassment claim.

In addition, the policy must include a procedure for employees to report harassment, including multiple avenues to report if reporting to a direct supervisor or manager is insufficient or the offender is the individual’s direct supervisor or manager. The procedure should assure employees that reports will be investigated promptly and thoroughly, will be kept as confidential as possible, and that the organization will take swift action if it is determined that harassment occurred. A benefit of a reporting procedure is that an employer can assert a defense against liability if they can show they had a policy against harassment with a reporting procedure but that the employee unreasonably failed to use the reporting procedure.

2. Remind employees of the anti-harassment policy and reporting procedures to reinforce that your workplace is one where employees should feel comfortable speaking out, and so any current issues can be addressed as soon as possible.

Whether you think your organization has a current issue or not, now is a good time to remind employees of your anti-harassment policy and reporting procedures. You can send out an email with a copy of the policy and procedure and let employees know where the policy can be found in your handbook. Assure employees that their complaints will be kept as confidential as possible and that your organization has an open-door policy, takes complaints seriously, and will address reports promptly and thoroughly. Learning about harassment complaints early, or while they are still minor, can allow resolution before things get out of control.

3. Train all employees, including supervisors and management, on your organization’s anti-harassment policies and reporting procedures.

Training is a valuable tool for preventing harassment from occurring in the workplace and for increasing the likelihood that any harassing behavior will be reported so it can be addressed before the situation escalates. The training should provide management and employees with a clear and uniform understanding of what type of behavior is prohibited, how to report harassing conduct, how the organization will investigate complaints, and that retaliation is forbidden. Managers and supervisors should also be trained on how to respond to complaints from employees, no matter how minor, to foster a workplace environment that is professional and respectful, and on guidelines for discipline of harassers. Managers should also be reminded that any romantic or sexual advances toward subordinate employees violate the anti-harassment policy and place them and the organization at legal and reputational risk.

4. Respond to complaints by investigating seriously, thoroughly, and promptly.

Upon receipt of a complaint, respond immediately to address the situation. A swift response not only reduces your legal liability, but it also shows employees that your organization does not just pay lip service to its anti-harassment policy and reporting procedures, and that it takes harassment complaints seriously. Investigations should be conducted by a neutral party, whether that is HR, management, or outside consultants and/or legal counsel. The complainant should be interviewed and the discussion documented with details as to who engaged in the conduct, how the accuser has been affected, what the conduct consisted of, when the conduct occurred, and where it occurred. It should be determined whether anyone else has information that can assist in the investigation, and if so, those individuals should be interviewed as well. The person accused should be interviewed with a full opportunity to respond to the charges and provide other witnesses. Any written evidence, such as phone records, texts and posts, should be gathered and preserved. Based on the information gathered, each party’s credibility should be weighed along with the facts presented to determine whether the conduct complained of occurred. The standard is not so high that it must be determined beyond a reasonable doubt that the conduct occurred, only that the employer has a reasonable belief, based on the information presented, that the harassing conduct occurred. If the results are inconclusive, the complainant should be informed of the results and the situation should continue to be monitored.

Sheila Gladstone is the Chair of the Firm’s Employment Law Practice Group and Ashley Thomas is an Associate in the Employment Law Practice Group. If you have any questions related to this article, would like the Employment Law Practice Group to conduct anti-harassment training, conduct an investigation, review your policies, or advise you on anti-harassment matters; or have questions related to other employment law matters, contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com, or Ashley at 512.322.5881 or athomas@lglawfirm.com.