Just when employers thought that issues regarding sexual harassment were somewhat under control, Hollywood reminded all of us that harassment remains an issue for employers to continue to address meaningfully. Even more concerning is that the Hollywood’s accusers are reaching back many years to recall incidents they believe were harassing. These widely publicized accusations have caused a heightened awareness by your employees of their rights and each employer’s responsibilities related to the topic. With all of this publicity, employers should anticipate facing an increase in complaints in the near term. So what is an employer to do?
Take the following actions now:
• Update, republish and reaffirm your harassment policy which must include all defined types of harassment – not just sexual harassment.
• Ensure you have a viable and accessible complaint procedure.
• Effectively train your supervisors, managers and employees on what harassment is, how to avoid it and how to deal with it.
• Have an investigation protocol, which will develop the evidence you need promptly and which will limit your liability.
• Take prompt, appropriate remedial action as warranted.
• If the claims are resolved through a written settlement agreement, retain employment law counsel to prepare a comprehensive agreement.
Your harassment policy should define unacceptable conduct, firmly state the company’s position, describe the consequences of inappropriate actions, suggest informal resolution, require a written report in the handwriting of the employee immediately upon an incident being reported, inform of the investigation process but not promise that the process will take any special approach, promise no retaliation and caution against false accusations being made by employees. Does your policy do all of these things?
Training of your staff must include, among other things, information about employees recognizing that what is generally acceptable in society in a non-employment setting may not be acceptable in the workplace. Employees must be taught that some individuals may be more sensitive than others and that it is a matter of individual perception. Ensure that your employees fully understand the policy and know the methods for reporting claims and the need for promptly reporting such. When training your employees, documentation of the training is a must.
Remember, harassment is unwelcome conduct that can be based not only on sex but also on race, religion, national origin, age, disability and other protected classifications. Harassment becomes unlawful where the conduct is severe or pervasive and unwelcome. Offensive conduct may include such things as offensive jokes, slurs, name calling, physical assault, unwelcome touching, intimidation, the display of offensive objects or pictures, email communications and other such things. Harassment can arise not only between employees but also can be caused by non-employees who deal with your staff. Yes, you must even take action to prevent harassment of your employees by outsiders who are working alongside your employees or visiting your facilities and jobs.
Be sensitive to the fact that disgruntled employees, especially ex-employees, often strike back at employers through claims of harassment. While some employers have attempted to obtain insurance to cover these types of claims, many have found that coverage is less than what they expected. Also, the punitive damages which usually represent the largest component of any jury award generally are not covered by the insurance policy. These claims can be expensive. So, spending a few dollars now on prevention is well justified.
Bob Dunlevey is an OSBA Board Certified Labor and Employment Law Specialist. He can be reached at firstname.lastname@example.org.