Is Tom’s conduct sexual harassment? Before answering “yes” or “no,” consider the following:
- Can any of Tom’s conduct be considered “sexual” in nature?
- Is Tom’s conduct offensive to Tracy?
- Is Tom’s conduct offensive to witnesses or other employees?
- Does Tom have authority over Tracy?
- Does Tracy feel like she needs to tolerate Tom’s conduct in order to keep her job?
- Does Tom’s conduct make Tracy’s job unpleasant?
- Does Tom’s intent matter?
As a former litigator, I have spent a great deal of time defending employers from harassment claims whose facts often resembled Tracy’s situation. Employment lawyers often (and jokingly) refer to people like Tom as an “equal opportunity harasser.” But the “equal opportunity harasser” excuse or defense has absolutely no place in the workplace or courtroom.
Today, companies cannot afford the slightest of missteps when it comes to potential harassment claims. Even an employee’s best intentions can be misconstrued and misinterpreted. And the limits of the most unambiguous and stringent of policies are bound to be tested. Between emailing your work buddy inappropriate jokes, having discussions about what happened on the most recent episode of “The Office,” or asking your co-worker out on a date, personal boundaries in the workplace are often poorly delineated. What might be innocuous to one person may be completely egregious and offensive to another. Sexual harassment makes for not only an unhappy, uncomfortable and unproductive work environment, but it can be extremely costly to the employer. So, this begs the question: what can employers do to protect themselves against potential claims of unlawful harassment?
The basic building blocks for protecting against and preventing what can end up being quite expensive are actually quite simple:
- CREATE A SOLID POLICY AND FOLLOW IT. Harassment based on any protected characteristic (gender, race, religion, etc.) is against the law. Ensure that your policy against unlawful harassment is up to date and compliant with federal, state and local law.
- PROVIDE A SAFE WORKPLACE. Create and be committed to providing a safe environment where employees can report sexual harassment violations without fear of shame, reprisal or retaliation
- REGULARLY MONITOR THE WORKPLACE. Talk with employees, ask for their input and generally look around the workplace itself to ensure no offensive material is present.
- HARASSER’S INTENT DOES NOT MATTER. The alleged harasser may think what he/she says is not offensive, but their intent does not matter. The focus is on what the victim perceives was offensive. Teach employees to recognize that not all people react the same way to situations.
- RESPOND TO AND INVESTIGATE COMPLAINTS PROMPTLY. Create and maintain an impartial and fair process to respond to and investigate complaints of sexual harassment. Ensure several avenues of reporting and maintain an anonymous complaint response program.
- ALLOW A NEUTRAL THIRD PARTY TO CONDUCT INVESTIGATION. In certain situations, a neutral party is retained to conduct the investigation in an effort to avoid any actual or perceived bias.
- END INVESTIGATION WITH A CONCLUSION AS TO WHETHER A VIOLATION OF POLICY OCCURRED. Resist the temptation to end an investigation without a conclusion, merely because the statements of the complainant and the accused are contradictory. And remember… a violation of an employer’s internal policy may not necessarily amount to legal sexual harassment. Many times, an employer’s policy against harassment is one of zero tolerance and thus, is much more rigorous than what is considered harassment under the law. In some instances, a single act of inappropriate conduct may not be actionable under the law, but it might very well result in an employee’s termination. Furthermore, a Code of Conduct policy often allows employers to maintain a work environment free of unbecoming behavior in a work environment that might not rise to the level of being harassing or discriminatory under the organization’s anti-harassment policy.
- TAKE APPROPRIATE CORRECTIVE AND REMEDIAL ACTION. Following investigation, employers should take action designed to end the harassment, based on the objective findings made during the investigation, and prevent such conduct from happening in the future. Termination is not the only option. In some cases, corrective action may include one-on-one sensitivity counseling and behavioral coaching to rehabilitate the offender while keeping him or her employed.
- IF IN DOUBT, SEEK HELP. If a tough call arises, such as what to do if your internal investigation points to unlawful conduct, reach out for advice from an upper level human resource professional or legal counsel.
- AND LAST, BUT NOT LEAST… TRAIN! TRAIN! TRAIN! Provide ongoing and periodic training to all employees – not just supervisors and managers – in harassment recognition and prevention. By training your workforce, all employees become aware of inappropriate workplace conduct and the risks associated with harassment claims.
And if you are a California employer, remember that supervisory sexual harassment training is the law! California Government Code section 12950.1 mandates that employers who employ 50 or more persons must provide two hours of sexual harassment training every two years to all persons who supervise California-based employees. Further, any supervisory employees hired or promoted after Jan. 1, 2005 must be trained within six months of their hire or promotion date.
Additionally, California regulations specifically require that the training be provided by a qualified "trainer,” such as an attorney, professor, instructor, human resource professional or harassment prevention consultant with at least two years of expertise in employment law and/or harassment prevention. Failure to comply with the training requirement may lead to heightened scrutiny of an employer's overall training methods and record-keeping requirements, as well as a claim that its failure to comply is evidence of its failure to prevent harassment from occurring. Because California’s statute addresses only the minimum training guidelines, prudent employers would be wise to train not just their supervisors and managers, but all employees.
Enduring a sexual harassment lawsuit is one of the last challenges today’s employer wants to face. The best way to avoid such an unpleasant situation is to encourage a mutually respectful workplace, educate your employees how to recognize inappropriate behavior, and foster an open-door policy for reporting. With solid policies in place, combined with proper and ongoing training, employers can avoid people like “Tom” disrupting the workplace, creating uncomfortable situations and unproductive environments, and opening the employer up to potential liability.