Workplace harassment persists despite the fact that it has been against the law for over three decades. The recent spate of high profile cases and the impact of “#MeToo” will result in more internal claims to employers, more charges to state and federal enforcement agencies, and more lawsuits. In this Advisory, we offer ten steps employers can take today to prevent harassment, to properly deal with harassment claims when they are made, and to appropriately respond to harassment when it occurs.
We know that the old practice of simply having a policy prohibiting illegal harassment and occasionally showing a video or an on-line quiz is not working. Employers have become complacent, as DWT partner Judy Keyes outlines in her thought-provoking article on how we got where we are and how we might (finally) effect meaningful change. Creating a respectful, congenial workplace does not happen overnight and needs to start at the top. Lawsuits often result from managers or HR staff mishandling internal complaints, either because they are not well trained or because they do not have the necessary stature in the organization. Or, management and HR may be hamstrung because employees fail to come forward with reports of harassment even when they are promised there will be no retaliation.
Here are ten steps employers can take today. These practical strategies not only protect employers from risk exposure, including costly settlements or damage awards and negative publicity, but also represent the right thing to do to create an environment respectful of all -- and to stop harassment in its tracks.
1. Make a respectful workplace part of your company culture. How about a strong statement from the very top of the organization emphasizing a respectful work environment for all and the fact that harassment will not be tolerated? And, make sure the anti-harassment policy makes clear that even sexual innuendo at work is off limits. It is impossible to tell when inappropriate behavior is "welcome" vs. "grinning and bearing it," and inappropriate is on the path to unlawful. You may need to “press the reset button” to get this done.
2. Make it easy to report harassment and potential harassment. Do not require that complaints be presented in writing or as a “formal complaint,” and impose no impediment to speedy resolution. Lack of a “formal complaint” is not a defense, nor is “he told me not to do anything” or “she made me promise not to tell anyone.”
3. Promptly investigate every single claim. The law requires you to investigate and promptly take any appropriate corrective action. Prompt action that eliminates the problem is a complete defense (i.e., no liability), except for what your managers do. Be sure the investigator is neutral and competent, and circle back to the employee to let him or her know what you did or found.
4. Remove the “quid pro quo” risk. If management personnel are not engaging in sexual relationships (or attempted sexual relationships) with other employees, the risk of claims (and unwanted publicity) from demoted or discharged employees alleging retaliation for refusing to have sex is remote. Adopt a dating/socializing policy that forbids management from dating and hanging out off-duty with non-management. You may have strict liability for your managers’ on and off-duty interactions with your employees. If a romantic relationship develops in the workplace, make sure there is no reporting relationship and consider a “love contract.”
5. Even if you do not forbid dating, tell your managers why they should not consider the staff their personal dating pool. Explain their risk of PERSONAL LIABILITY for harassment, life after break-ups, risk of claims of favoritism, unfairness, retaliation, and damaged reputation. Juries sometimes make the perpetrator pay along with the employer.
6. Eliminate horseplay -- especially if it involves body contact. Jokes and gestures often result in claims, especially when they are repeated and part of the culture.
7. Train your assistant managers and others before you promote them. They must understand they are no longer one of the gang. If you have multiple locations, transfer employees promoted into management for the first time to help ease the transition.
8. Slip training about inappropriate behavior at work into other meetings or training that you already do, and institutionalize the practice. Train in person whenever possible because employees do not learn all that much from pointing and clicking.
9. If you provide alcohol at company events, consider limiting quantities with drink tickets. If “happy hour” is part of your company’s culture, encourage managers and supervisors to have one drink and exit – alone – because you have liability for managers’ off-duty conduct with your employees.
10. Give HR executives a seat at the senior management table. Let them know that they do not have to handle everything themselves if a situation requires outside intervention or assistance. Make it clear to them and to everyone that they are as important and as respected as any other C-suite executive.
With these thoughtful and comprehensive steps, repeated and refreshed often, employers can successfully create a harassment-free environment.
FLASH WEBINAR. To learn more, on December 14 at 1 p.m. EST/ 10 a.m. PST, Davis Wright Tremaine will present a complimentary, one-hour webinar, Top 10 Steps Employers Can Take Today to Prevent and Properly Handle Sexual Harassment Claims, featuring attorneys with over 75 years of collective experience discussing best practices for implementing these steps. Please click here to RSVP.