During the presidential campaign we heard about workplace sexual harassment involving one candidate and the other’s husband and former President. It’s an issue that is not going away, either.
More than 6,800 of these complaints were filed by the Equal Employment Opportunity Commission in Fiscal Year 2015. Although we’ve seen a slow but steady decline from the 7,900 cases EEOC brought in FY 2010, last year employer payouts hit the highest total in the past five years—$46 million.
Headlines from the presidential campaign, and other high profile cases like Bill Cosby’s, have raised public awareness of the issue, which may lead to a rise in lawsuits. Such claims can encompass a wide range of bad behavior by managers or supervisors, fellow employees and even non-employees, such as customers.
Be particularly wary of dismissing verbal conduct like Donald Trump’s as just “locker room banter” that shouldn’t be taken seriously. It’s not necessary for an accuser to assert sexual acts were demanded in exchange for keeping a job or securing a promotion; creating a “hostile work environment” is enough.
EEOC says this covers offensive jokes, slurs, epithets or name calling, physical assaults or threats of assaults, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.
Amy Epstein Gluck of the law firm of FisherBroyles notes that the victim doesn’t need to be the person harassed. “A person may be sexually harassed if (s)he is merely affected by the offensive conduct.” Yes, you read right—women supervisors and co-workers can be sexual harassers, too.
Wendy Bryant Becker, an attorney with the law firm of Bingham Greenebaum Doll, points out, “Harassment cases are usually difficult to defend, and their outcome is very unpredictable.”
However, in 1998 the U.S. Supreme Court held that an employer may defend itself by showing it exercised reasonable care to prevent and correct promptly any sexually harassing behavior. “Fortunately, there are steps that you can take to increase the chance of an early dismissal or settlement in the event that your business is confronted with such a claim,” Becker says.
Last year in a hostile work environment case the New Jersey Supreme Court said an employer can defend itself by showing it exercised reasonable care to prevent and correct promptly such behavior when it also can show the employee failed to take reasonable advantage of these preventive or corrective opportunities.
The first thing any employer should do is create a sexual harassment policy, Becker says. That policy should:
• Explain what harassment is and make clear that such behavior is not tolerated.
• Describe how to report harassment, and state that all reports will be investigated and kept confidential to the extent consistent with a thorough investigation.
• Advise employees that they will not be retaliated against for making a good faith complaint.
• Make clear that any employee found to have violated the policy will be disciplined appropriately.
The policy also should stress to employees there will be no retaliation for complaints made in good faith, and that any employee found to have violated the policy will be disciplined appropriately. If the policy isn’t included in an employee handbook, make sure employees are given it.
This policy will be the first document you will be asked to produce after a claim is filed. Equally important is that you be able to prove it was distributed to employees and that they received training. Require them to acknowledge in writing receiving it and sign documents that prove they received training.
In our next column we will examine the steps employers need to take when investigating sexual harassment complaints.