Harassment in the Workplace: It’s Not Just for Hollywood

Harvey Weinstein, Louis C.K. Matt Lauer, Marshall Faulk, James Franco, Mario Batali, Charlie Rose, Ryan Seacrest…who’s next up to the plate? One year ago, this would have been a list of successful and famous men. Today, it’s a list of people who have been accused of harassment by female co-workers. It seems like every day another name pops up into the newsfeed with allegations of harassment. As a result, employers are scrambling to try to take steps to prevent their name from being the next one in the news. What, exactly, can employers do to prevent or, at worst, remedy any such claims? The answer is not always easy, but there are some steps an employer can take to place it in a position to eliminate harassment or defend against claims that are brought against it.
As an initial matter, it is important to understand what unlawful harassment is. Many people believe that unlawful harassment is anything that makes the workplace “hostile.” In this regard, employees claim they have been subject to harassment because their boss is mean to them or co-workers are not as friendly as they would like them to be. To be clear, the law does not protect employees from general issues at work or require the workplace to be a friendly and wonderful place. Unlawful harassment is a specific term of law which requires certain factors to be present which are as follows: there must be unwelcome conduct (which could be basically anything), which is based upon an individual’s protected classification (age, race, gender, religion, national origin, gender identity, sexual orientation, disability, etc.), the conduct must be subjectively and objectively offensive, and it must be severe or pervasive.
The main difference between merely a mean boss and a harassment claim is that the conduct is based upon an individual’s protected classification. If the behavior is not based on a person’s protected classification, what they have is not an ideal work setting, but not a claim for harassment.
Now that there is an understanding of what is “harassment,” employers need to determine what they can do to prevent claims or defend against claims that are brought. The first thing employers need to do is develop an effective harassment policy. A harassment policy must have certain provisions in order to be effective which include a statement of what is protected (hint: it is not just sexual harassment!), examples of harassment, a multi-tiered complaint mechanism (meaning the complaint procedure should not start and end with a person’s supervisor), a provision addressing confidentiality issues, anti-retaliation language, and language which addresses disciplinary issues.
While all of the previous provisions are important, the most significant requirement is that the policy has a multi-tiered complaint mechanism. If the complaint mechanism is limited to an individual’s supervisor, what is that person to do if the supervisor is the one engaging in the harassing behavior? If that is not addressed in a policy, it is not going to be deemed effective and is not worth the paper it is written on.
Having a policy is great. However, it is not sufficient to prevent and defend claims of harassment. If an employer has a policy, but no one knows what it is, it might as well not exist in the first place. As such, employers must provide regular harassment training to its employees. With regard to such training, the Equal Employment Opportunity Commission (the “EEOC”), the federal agency responsible for handling claims of harassment and discrimination, indicated in a 2017 report that harassment training should be in-person (not merely pushing a button online) and interactive and that there needs to be different training for supervisors and non-supervisory employees.
In this regard, supervisors need to be trained on how to protect, eliminate, and respond to complaints of harassment. Supervisors also need to be trained on how to document issues and the liability concerns which arise if they merely “do nothing” when in the presence of potential harassment. Training must also address proper and appropriate measures which employers should take in response to claims of harassment to remedy and eliminate any such issues.
Ultimately, most harassment claims come down to issues of common sense. It should be common sense not to end an interview with an invitation to a hotel room. It should be common sense not to take revealing pictures of yourself and send them to co-workers. It should be common sense that employees should not send inappropriate e-mails to each other. The problem, however, is that in many instances common sense is lacking and whether someone intended to offend the other person is irrelevant. Employers must, therefore, take steps to educate their employees and prepare for any potential claims that may arise so that they are not in the next headline.