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What Can Employers Learn from the Recent Sexual Harassment Scandals?

By Amelia J. Holstrom - Skoler, Abbott & Presser, P.C.

November 17, 2017

For weeks now, women have been coming forward accusing Harvey Weinstein, prominent film producer and co-founder of the Weinstein Company, of sexual harassment and sexual assault.  At this point, some articles report that Weinstein now faces accusations from more than 50 women.

And, in the weeks since the accusations against Weinstein became public, other women and men have come forward accusing other celebrities, such as Kevin Spacey, Louis C.K., and even Republican Senate candidate Roy Moore and Democratic Senator Al Franken of sexual harassment and assault.

The allegations against these individuals sparked a resurrection of the #metoo campaign on social media. The campaign called on those who had been sexually harassed or sexually assaulted to share their stories with the hashtag me too. Over the last several weeks, men and women all over the world have shared stories through the campaign.

With allegations of sexual harassment in the spotlight, agencies and companies are issuing statements and conducting research about sexual harassment.  Recently, the EEOC issued a “What You Should Know: What to Do if You Believe You have Been Harassed at Work” statement.  It outlines steps for employees to take if they believe they have been subject to harassment.  Additionally, BLR recently wrote an article citing to a recent article by the blog Comparably.  The blog asked people to respond to the following question: “Have you ever been sexually harassed at work?”  According to BLR, the survey showed that 26% of female employees responding indicated they had been sexually harassed, while only 8% of men responding answered yes to the question. The answers obtained by Comparably in response to the question also showed that those who were less educated were more likely to be harassed.   When looking at age, the percentages of those who answered yes to the question was consistent among all of the age categories. The blog is still live and still soliciting responses.  As a result, this information could still change.

At a result of the #metoo campaign, the new allegations that have been appearing in the news almost daily over the last several weeks, and highlighted attention on sexual harassment in the workplace, employers are likely to receive more complaints of sexual harassment in the coming weeks and months.  With other men and women telling their stories, employees may begin to feel more comfortable bringing their complaints forward.  Employees often hesitate to file harassment complaints for a number of different reasons, including embarrassment and fear of retaliation; however, with sexual harassment complaints against celebrities in the news every day, employees may be more likely to speak up about past and current harassment they believe they have suffered at work.

So, what should employers do?

Have a policy.  For example, Massachusetts law requires employers of six or more employees to have a written sexual harassment policy that is distributed at time of hire and annually to all employees. The policy has to include a notice that sexual harassment is unlawful and that it is unlawful to retaliate against someone who reports sexual harassment or participates in an investigation into harassment. Additionally, among other things, the policy has to define sexual harassment and inform an employee of the location of the state and federal agencies at which s/he can file a Charge of Discrimination alleging sexual harassment. The policy should also outline the employer’s internal complaint and investigation procedure. We strongly recommend that each time the policy is distributed, the employer obtain a signed acknowledgment form from the employee indicating that they have received, read, understand, and agree to abide by the policy.

Consider training. In Massachusetts, if a supervisor harasses a subordinate or knows about harassment but fails to take prompt steps to report, investigate, and stop the conduct, the supervisor has created significant legal risk for the employer and for themselves. Massachusetts law allows supervisors be sued individually in cases of sexual harassment. As a result, it is important that supervisors receive periodic training on what constitutes sexual harassment and what to do if they receive a sexual harassment complaint or observe potential harassment in the workplace. A few hours of training per year could save an employer from a costly lawsuit.

Further, annual training for all employees can be beneficial as it highlights what is not acceptable and outlines the serious repercussions, including termination, for harassing behavior.

Refine your complaint and investigation process. As discussed above, an employer’s sexual harassment policy ought to outline where and how employees can bring internal complaints of harassment and what the investigation procedure is. If either of these processes are unclear at your workplace, now is the time to revisit them and develop a complaint process and investigation procedure.

Although complaints can be brought to an employer’s attention in a number of different ways (i.e. third party, observation, etc.) and an employee is not legally required to follow the complaint procedure outlined by an employer’s policy so long as the employer becomes aware of the complaint through some means, it is still advisable to have such a procedure in place and make employees aware of it.  Employers should not demand that complaints be made in a certain format, but rather should accept complaints verbally and in writing.  Additionally, employers should provide the names of two employees, preferably one male and one female, to which employees can bring their complaints of harassment.  And, lastly, the employer should inform all employees that they will not be retaliated against for reporting harassment in good faith.

With regard to the investigation process, it must be a prompt and thorough process that involves a private interview with the person filing the complaint, the accused, and any witnesses.  Additionally, employers ought to review any other evidence, including but not limited to policies and emails.  Employers also might want to specify who will be responsible for investigating allegations of sexual harassment in the procedure outlined in the policy.

Clear communication of these procedures to employees is an important part of the sexual harassment policy.

What to do with a sexual harassment complaint. Conduct a prompt and thorough investigation into the allegations as outlined above, document the investigation including but not limited to taking notes during interviews, write up an investigation report, and determine what, if any, discipline is appropriate. Once the investigation is complete, follow up with the complaining party regarding outcome without sharing specifically what, if any, discipline the accused will face, follow through on any disciplinary measures or other recommendations, and in the weeks and months following, continue to follow up with the complaining party to be sure that all of the conduct s/he reported has stopped. Employers should also remember that their workplaces are not courts of law, and so employers are not bound by any “proof beyond a reasonable doubt” standard before imposing discipline.  Even when an investigation doesn’t reveal any hard “proof” of harassment, employers can impose discipline if they believe improper conduct occurred.

Bottom line. The best position for an employer to be in is one in which none of its employees are engaging in sexual harassment.  Distribution of the policy and annual training help to eliminate harassment in the workplace, but when someone does report it, an employer must also be prepared to promptly investigate and stop the conduct to limit its legal liability.  One of the most effective ways to curb harassment in the workplace is to take strong action in response to misconduct and make clear to employees that inappropriate conduct will not be tolerated.

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