Sexual harassment in the workplace (at least in most workplaces) has been unlawful for more than 30 years. Companies are required to post information about federal and state law (where applicable) identifying sex discrimination, including sexual harassment, as unlawful and instructing employees what to do if they feel they have witnessed or been the victim of sex discrimination. Some states, like California, require frequent and focused training of managers to be sure they know the rules around sexual harassment and the consequences of failing to abide by them.
Despite these longstanding legal requirements, it is hard to watch the news, listen to the radio, or check Twitter without reading a new story daily of alleged sexual harassment perpetrated by a politician, corporate executive, or some other public figure. Conduct that was once shrouded in secrecy for one reason or another seems now to be part of our daily rhetoric with #metoo stories filling social media platforms on an increasing basis.
There are many possible answers to the question of “how did we get here?” including making training nothing more than a file-cabinet requirement, not holding perpetrators accountable, not understanding legal obligations, passing a problem employees from department to department or from employer to employer, just to name a few. All of these answers beg the question, “what do we do now?” The answers to that question follow below.
Let’s Start at the Beginning: What Is (and Isn’t) Sexual Harassment?
Sexual harassment can have multiple definitions based on the context. Sexual harassment may be defined by a company’s policies, it may be defined by federal and state laws, or it may be defined as part of a state’s criminal code. Each definition may be different, not only in the type of conduct prohibited but also the intent required of the alleged harasser and the perspectives of the alleged victim. This article deals with sexual harassment standards under federal law that often dovetail with state laws and/or employer policies.
Sexual harassment, from a civil liability perspective, is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 (“Title VII”). An unlawful sexual harassment occurs when the workplace is permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment. This standard requires an objectively hostile or abusive environment, one that a reasonable person would find hostile or abusive, as well as the victim's subjective perception that the environment is abusive. Whether an environment is “hostile” or “abusive” is determined by looking at all the circumstances, which include factors such as the frequency of the offensive and unwanted conduct; its severity; whether the conduct is physically threatening; and whether the conduct unreasonably interferes with an employee’s work performance. There is an inverse ratio between the frequency and the severity of conduct leading to a conclusion of unlawful sexual harassment; a single egregious act may constitute sexual harassment, whereas a series of rude comments scattered over months or years may not.
Significantly, however, not all inappropriate workplace behavior, even when sexual in content, necessarily amounts to unlawful sexual harassment. The critical issue “is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale v. Sundowner. Title VII is not intended to be a general civility code for the American workplace or to reach “genuine but innocuous differences in the ways men and woman routinely interact.” While an aspirational goal, the law recognizes that the workplace is not expected to be free from all offensive behavior. “[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton. Also unlikely to amount to unlawful harassment are occasional rude or offensive comments, sexual flirtations, social slights, personality conflicts, or petty grievances or differences of opinion among co-workers.
Now That You Know What Sexual Harassment Is, Here’s What To Do About It
Make Cultural Change From The Top
No written policy (and your company must have a written policy) will ever be as effective as a leader who makes clear that harassment goes against the very grain of the organization and will not be tolerated, not only because it is against the law and violates policy but because it is wrong. CEOs and directors who walk the walk even when it's hard will make a huge difference. Having more women as CEOs and directors might help.
Have a Well-Written Policy That Is Given to All Employees on a Consistent Basis and Readily Accessible at Any Time
When I depose plaintiffs in harassment cases, they routinely testify that they (a) didn’t know what qualified as sexual harassment; (b) didn’t know who to tell when the harassment was done by a co-worker who was friends with the manager or the manager himself; or (c) thought they’d get in trouble if they reported the incident. A well-written, well-disseminated policy should address all of these issues. Take the time to have a legal professional draft or review your policies. Requirements vary by state and even locality and you want to ensure your policies are complete.
Conduct Meaningful Training for ALL Employees
Sexual harassment training is too often ineffectual, designed more to “check the box” in order to protect the company than to root out and eliminate the scourge of harassment. Much of the available online training is hackneyed; although it may be better than no training at all, such training can backfire in its suggestion that the company trivializes the issue. Serious, professional, credible training for both rank-and-file employees and managers seems the least that should be done. Seminars designed specifically for senior executives and boards of directors, focusing on their unique role and responsibility, should be added to annual planning sessions or monthly meetings. And attendance should be mandatory.
Respond Quickly and Impartially to Allegations of Sexual Harassment
Employers must take all complaints of sexual harassment seriously. This may be difficult for an employer when the complaining employee is a poor performer and/or complains about trivial issues consistently. Taking all complaints seriously may also be difficult when the alleged harasser is high-up in the company, a top performer, a jovial office jokester (who of course wouldn’t mean anything by his maybe-going-too-far comments), or a longtime employee with no record of prior complaints. But regardless of who makes the complaint and against whom the complaint is made, the employer has a responsibility to take it seriously.
What does taking a complaint seriously mean? In a nutshell, it means that the employer immediately responds (the same day the complaint is received or the next business day) to the complaint, which may include separating the offending employee from the complaining employee, and initiating an impartial and appropriate investigation within a few days of the complaint. What taking a complaint seriously does not mean is rushing to judgment on either side of the equation. Employers must avoid knee-jerk employment actions against an accused harasser before an appropriate investigation is complete.
Not every claim of harassment has merit, and not every report of harassment is fully accurate. There may be conflicting reports or relevant background facts. There may be a malicious motive in making a false claim of harassment. These situations are why impartial and appropriate investigation is critical and a serious responsibility for the employer. The absence of a “formal complaint” or an identifiable “victim” doesn't make it any less so. It's not easy to conduct a proper investigation, one that is prompt, objective, and thorough, and it’s especially hard when the claim is made anonymously through a hotline (as companies are encouraged to have). It’s further complicated when some of the players are former employees or are on leave or work in far-flung places. It’s challenging when the accused plays an important role in the company or is a public figure. Protecting the privacy of everyone involved and the confidentiality of the investigation while being as thorough as the situation requires is tricky. Making a determination when it is “he said, she said” requires particular expertise. Too often, Human Resources personnel, as skilled as they may be at their jobs, are called upon to do investigations when they really can’t because of lack of training or experience, objectivity, or time. It’s not fair to them, to the participants, or to the organization. And the absence of an impartial and appropriate investigation will be used against an employer should a lawsuit arise. Using an outside professional investigator, as unattractive an option as that may be, sometimes is the best solution in a hard situation. An outside investigator should always be considered where there are allegations of sexual harassment against an executive-level employee or against anyone “superior” to the individual conducting the investigation.
Have Open Lines of Communication With the Alleged Victim
Sexual harassment allegations often end up in he said/she said situations where there is no clear evidence that a policy violation occurred. That doesn’t mean you as an employer get to do nothing. That is the single best way to end up on the wrong end of the lawsuit because the victim feels like you don’t care. Communicate to the complaining employee before you conduct an investigation (so he/she knows steps are being taken) and after the investigation to let him/her know what the outcome was. If the outcome was that the company was unable to corroborate the allegations, say so. But also say you appreciate the employee making the report and encourage him/her to immediately report any additional unwelcome conduct or possible retaliation. Then follow up with that employee on a regular basis (even if just once a month for the next three or four months) to ensure things are going well. Reaffirming the company’s policy prohibiting sexual harassment and retaliation with the alleged harasser is also advised.
Hold Harassers Accountable—Even if They Are an Executive or Top Performer
Harassment should be viewed as the serious threat to the organization that, in fact, it is. It should be treated as seriously as embezzlement or the theft of a trade secret. No company considers a written warning and sensitivity training to suffice as punishment for an embezzler; neither should it for a harasser. It is also critical to let the complaining employee know that the harasser is being disciplined so he/she knows something is being done (it is common for harassment plaintiffs to testify that they thought nothing was done—even when it was).
Hold Enablers Accountable
One of the things that I find most astonishing about the recent revelations of sexual harassment is how many people supposedly knew the harasser was engaged in bad conduct and did nothing. It’s easier to look the other way than to report harassment – especially when the harasser is a person of power. No one, no one, should blame the victim of harassment for causing the harassment. But, still, it must be said that part of the responsibility for the current state of affairs is the failure of those who witness harassment and those who experience harassment to speak up, to report it, to challenge it, to expose it. “Aiding and abetting” harassment may violate the law (it does in Oregon, and exposes individuals to personal liability) and should certainly be a violation of company policy. Serious discipline of witness-employees who know of harassment and fail to report it should help eliminate it. By the same token, serious discipline must be levied against anyone who retaliates against an employee who has in good faith reports harassment.
Empower Human Resources
Until an organization is of a certain size, having an HR department may not be feasible. But even in these situations, there should be someone, either inside the organization or outside of it, who is identified as a go-to person for perceived harassment and discrimination, and that person should have a direct line to and the respect of the CEO. Once an organization is big enough, it should have an HR executive who is skilled and savvy and respected within the organization. He/she should report directly to the CEO and should have access to the Board and be recognized as a leader. Most importantly, the HR executive should be charged with, and rewarded for, preserving the organization’s commitment to a harassment-free workplace, not for pretending that problems don't exist or shoving them under the rug if they do.
Be Smart About Confidentiality in Settlement Agreements
I recently heard a story on the news where the guest commentator was opining that non-disclosure agreements were hush money for guilty corporations. While this may be true in some cases, I know from my 20+ years as a management-side employment lawyer that more often than not settlement agreements are a business decision. There is often little or no evidence of bad behavior, but the company will settle the case to avoid the high costs of litigation and to move on with the operations of their business. Companies’ concerns of costs, reputational harm, and “copycat” claims are legitimate. If discretion is important to the company, the settlement agreement should include a well-crafted, professionally drawn, confidentiality clause. But there also may be room for middle ground, especially in the current climate where people demand and appreciate corporate accountability. Perhaps an agreed-upon statement—maybe even one that recognizes the report of harassment, the investigation, and finding of no corroboration (or corroboration but immediate discipline), and assurance of the company's commitment to a harassment-free workplace is appropriate. What if a light were shone on the positive aspects of an employee’s having the courage to confront harassment and an organization’s having the integrity to accept responsibility and to right a wrong? Might that become the new norm?
As long as there are human beings in the workplace, there will be friction, including harassment. As T.S. Eliot posited in "Choruses from the Rock", it is foolish to imagine that we can, "dream of systems so perfect that no one will need to be good." But as we enter 2018, we can imagine doing a few things differently that just might result in at least the most rampant, most repugnant forms of sexual harassment becoming rarer – and eventually, maybe, becoming unimaginable.
(I’m indebted to my Davis Wright Tremaine colleague Judith Droz Keyes for insights and observations that I included in this article.)