Each week seems to bring new revelations of sexual misconduct by another high-ranking politician, journalist, actor, movie producer, etc. and the inevitable fall from grace, ruined reputation and shattered career. What impact is this media focus on sexual assault and harassment likely to have on your workplace?
Employers should be prepared for an increase in workplace sexual harassment claims. The upsurge in the public portrayal of bad behavior by major players in Hollywood, Washington and the news industry has emboldened women everywhere to share similar experiences on social media with the hashtag #MeToo. We are seeing a trend to bring out into the open what previously was hidden due to shame, fear of not being believed, or the belief that nothing will be done, particularly where the harasser is in a position of power. These are the reasons that many victims of sexual harassment state they do not come forward. That has all changed, and is likely to carry over into the workplace.
Why does this matter to your business?
Sexual harassment is illegal. Employers have a legal duty to provide a workplace free of harassment based on sex or gender, and the failure to do so can result in enormous financial consequences. Sexual harassment allegations are harmful not only to a company’s bottom-line, but also to its reputation and corporate culture.
What is sexual harassment?
Requests for sexual favors as an express or implied condition of employment is sexual harassment and is referred to as quid pro quo harassment. The accusations against former NBC anchor Matt Lauer would fall into this category since his alleged request for sexual favors would be considered an implied condition of employment due to his position of power with the network. Sexual harassment also includes sexual comments, jokes, gestures, etc. which are sufficiently severe and pervasive so as to create a hostile work environment.
What should employers be doing now?
- Review your company’s policies and procedures regarding sexual harassment complaints to ensure there are clear reporting procedures which allow an employee to by-pass a manager, supervisor, or even the CEO.
- Review your policies and procedures for conducting sexual harassment investigations, which must be conducted promptly (i.e. within forty-eight hours) by someone experienced in investigations and with no conflicts of interest.
- Establish clear procedures for handling complaints against the most senior people at the company, including the CEO. The use of outside investigators and legal counsel for investigations of any high-level individuals is highly recommended.
- Review your company’s sexual harassment training curriculum, which should be different for managers and non-managers. Training is critical to preventing sexual harassment in your workplace and should be conducted annually.
- Consider implementing a non-fraternization policy which prohibits dating relationships between managers and non-managers.
What to do if you determine sexual harassment has occurred
If your investigation of a sexual harassment complaint leads you to conclude that sexual harassment has occurred, what next? Make no mistake, an employer is required by law to take immediate and appropriate corrective action. Based on the career altering consequences to the likes of Roger Ailes, Bill O’Reilly, Harvey Weinstein, Kevin Spacey, Matt Lauer and others, there may be an expectation that any harasser will be terminated. However, not every incident of sexual harassment should necessarily result in a job loss. You should consult with legal counsel to determine appropriate corrective action following a determination of sexual harassment.