December 7, 2017
By Ethan O’Shea, Esq.
Unless you have been living in a cave for the past several months, you know that numerous careers and reputations have recently been shattered in the wake of sexual harassment claims. Harvey Weinstein, Charlie Rose, Matt Lauer, Louis C.K., Brett Ratner, Kevin Spacey and Bill O’Reilly are some of the high profile names on a long list of persons brought down by charges of sexual harassment. While these individuals bear the shame of these allegations, their employers have suffered as well at significant costs. Sexual harassment in the workplace is nothing new. In 2015 a full one-third of the 90,000 charges brought before the Equal Employment Opportunity Commission (“EEOC”) pertained to claims of harassment of one kind or another and the EEOC recovered $164,000,000 to resolve harassment charges. What is new is the stunning speed at which so many claims are being brought against so many public figures. The EEOC estimates that three-quarters of all victims of unwanted harassment fail to report the harassing behavior to their employers, but in light of the recent news reports I think it is safe to assume that more victims of harassment will feel empowered to report harassing behavior to their employers. If employers had not previously enacted policies to prevent and cure sexual harassment, it is critically important that they now do so.
Unlawful workplace harassment is harassment on the basis of sex, race, disability, color, religion and national origin. Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act make illegal these various forms of discrimination and harassment and subject employers to significant financial penalties for allowing harassment in the workplace. Given that the Pennsylvania Human Relations Act applies to employers with as few as four employees, virtually every employer is covered by these anti-harassment laws.
Harassment is generally defined as any unwelcome verbal or physical conduct that is motivated by a person’s membership in a protected class when the unwanted conduct results in a tangible employment action or is sufficiently severe or pervasive to create a hostile work environment. Sexual Harassment is a unique form of harassment that can take one of two forms:
- Quid Pro Quo Harassment. Quid pro quo harassment conditions employment benefits in exchange for submission to, or rejection of, a supervisor’s sexual advances.
- Hostile Work Environment Harassment. Hostile work environment harassment occurs when the harassing conduct is sufficiently severe or pervasive so as to alter the conditions of the victim’s employment. Conduct that can be deemed sufficiently severe or pervasive as to subject an employer to liability include physical harassment (various forms of unwanted touching), verbal harassment (sexual advances, lewd jokes, offensive comments or derogatory language, etc.) and non-verbal harassment (viewing or displaying pornography, making sexual gestures, leering, etc.).
An employer that does not have adequate policies and procedures in place to guard against harassment could find itself facing a charge of sex discrimination in either the EEOC or the Pennsylvania Human Relations Commission.
WHAT MUST AN EMPLOYER DO
The best way to prevent harassment in the workplace is to have a culture that forbids such conduct. This starts, but does not end, with a well-written anti-harassment policy. Every employer must have a written policy which, at a minimum, defines sexual harassment and makes clear what conduct will not be tolerated, gives examples of conduct that will violate the policy, and provides a complaint procedure letting all employees know how and to whom to make a complaint. The policy should make it incumbent upon all employees to report harassing behavior, and explain that the employer will not permit any retaliation against employees who make a good faith complaint of harassing behavior. The policy must also provide for prompt investigation of complaints and describe the corrective action that can and will be taken in the event reports of harassment are substantiated. It is not difficult to enact written policies and procedures, and these policies and procedures must be published and re-published to all employees. However, enacting written policies and procedures is the beginning, not the end of an employer’s obligations.
An employer will not be shielded from liability merely by enacting a written policy. There must be more. At a minimum, an employer should have training for all levels of employees regarding harassment in the workplace, including sexual harassment. Whether the training is done by the employer’s in-house HR staff, its general or outside counsel or a third party consulting firm, training is necessary because written policies alone are not enough to demonstrate that an employer exercised reasonable care to prevent and remedy harassing behavior in the eyes of the courts. Moreover, it is critical that employers have adequate complaint and investigative procedures in place and take prompt action when it receives a complaint of harassing behavior. Even a complaint that at first blush appears to be a small or isolated incident must be addressed seriously because it could be a sign of more systemic or severe problems. Additionally, failure to conduct a prompt investigation followed by appropriate corrective action can itself lead to liability and significant monetary damages. Not only will a thorough investigation provide a defense against that particular employee’s claims, but it will demonstrate that the company is serious about maintaining a harassment-free work environment thereby reducing the likelihood of future harassment claims.
Employers should think about how they might investigate any claims of harassment before they receive a complaint inasmuch as immediate action will often be necessary. For instance, the employer should have procedures in place for both an internal investigation and for investigations that must be conducted by an outside party. The more serious the nature of the complaint, the more likely it is that an outside investigator will be needed. Regardless of who conducts the investigation or the remedial action required, if any, a written report regarding the investigation should be prepared and the results and outcome of the investigation made known to the complainant.
If it can happen to NBC, CBS and FOX news, it can happen to your company too. Enacting simple, common sense measures now will help curtail inappropriate conduct in the future and protect you against liability should such conduct nonetheless occur.
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