November 1, 2017
If ever there were a time of reckoning for sexual harassment, it certainly seems that time has come. Allegations of such harassment have led to career altering consequences for several high-powered figures—Roger Ailes, Bill O’Reilly, and Harvey Weinstein, to name a few.
But perhaps what is most noticeable about this trend is that it reaches beyond the perpetrators of this inappropriate behavior to those who knew but remained silent and, by their inaction, enabled the discriminatory, and sometimes even criminal conduct, to continue and escalate. Quentin Tarantino, for one, has admitted, “I knew enough to do more than I did.”
Not surprisingly, such an admission will not get an employer off the hook for an employee’s sexual harassment of a coworker. With that in mind, here are some reminders and pointers for proactively addressing sexual harassment in the workplace:
Recognize that sexual harassment is a form of sex discrimination.
Any sex-based harassment meets this definition, including unwanted sexual comments/advances, offensive remarks concerning a person’s sex, and other verbal or physical harassment of a sexual nature. When the harassment is sufficiently severe and/or pervasive to create a hostile or offensive work environment, it is illegal.
Make it a policy to require your employees to report any harassment they witness, either to their supervisor or another member of management if they are uncomfortable reporting to their supervisor.
As soon as practicable after receiving a report of potential harassment, minimize contact in the workplace between the alleged harasser from the alleged victim by separating them, if at all possible. Then, interview both parties and others who might have relevant information regarding the purported harassment. You can determine what action to take following your investigation. Call your employment attorney if you have questions
To the best of your ability, keep sources private.
Sometimes, this will not be possible. Conducting a proper investigation of these claims will occasionally warrant or result in disclosure of the person reporting the inappropriate behavior. That said, employees should have every possibly assurance that, even if their identity is disclosed, they will not be retaliated against for making good-faith reports concerning sexual harassment.
At the risk of sounding somewhat melodramatic, we live in an age when making contact is easier than ever via e-mail, text messaging, social media, and a bevy of other communication channels literally at our fingertips. This means more opportunities to forget the bounds of professionalism and veer off course. It is important for employees always to keep in mind that unwelcome, inappropriate sex-based comments or conduct are unlawful and, quite simply, bad for business. To foster and maintain a harassment-free environment, employers should consider holding an annual mandatory sexual harassment seminar for employees. Also consider serving pizza at this seminar. I always remember things better when I learn them over pizza.
In other words, there are a number of things employers can do to promote a professional, productive, and safe work environment, and to minimize their exposure to legal actions concerning sexual harassment. Implementing good policy, properly addressing and investigating reports of sexual harassment, and periodically holding seminars on the topic will go a long way in fostering and maintaining an equal employment opportunity workplace.
Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.