Sexual harassment scandals have dominated the news cycle for the past several months. Harvey Weinstein, Matt Lauer, Charlie Rose, Roger Ailes, Bill O’Reilly, Kevin Spacey, Louis C.K. The list of high-profile individuals accused of engaging in harassment, discrimination or other unlawful conduct on the basis of sex grows seemingly each day and has focused the public’s attention on these issues and prompted lawmakers and employers to take action. In fact, just last week, United States Supreme Court Chief Justice John Roberts noted that “[e]vents in recent months have illuminated the depth of the problem of sexual harassment in the workplace” and announced that “[t]he judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.”
What does this increased focus mean for employers? If they haven’t already, Employers can almost certainly expect to see an uptick in reports of harassment. The following steps should therefore be taken to ensure that effective policies and practices are in place to prevent and address harassment in the workplace:
1. Policy Implementation/Review
First and foremost, it is critical that every organization implement a policy strictly prohibiting sexual and other discriminatory harassment in the workplace. A well drafted harassment policy should include:
a clear explanation of prohibited conduct;
a clear description of a complaint process that provides for a prompt, thorough and impartial investigation;
an assurance that the employer prohibits retaliation against employees who make good faith complaints or participate in an investigation of a complaint;
an assurance that the employer will protect the confidentiality of complainants to the extent possible; and
an assurance that the employer will take immediate and appropriate corrective action when an investigation substantiates that harassment has occurred.
Employers that already have harassment policies in place should review those policies to ensure that they contain each of the elements listed above.
2. Policy Communication/Training
Even the most well drafted policy is not effective if it is not clearly communicated to employees. Employers should use the recent publicity as an opportunity to distribute (or redistribute) copies of their harassment policy to all employees with a message reaffirming a commitment to providing a workplace that is free of harassment. Employers should also conduct regularly recurring training sessions – one for leadership and another for non-supervisory employees – and keep a record of all individuals in attendance. While some internet-based training sessions are helpful, there is no substitute for the effectiveness of in-person training. Both avenues are an excellent opportunity for an employer to communicate its harassment policy and to sensitize employees to the seriousness of harassment in the workplace.
3. Prompt, Consistent Response to Complaints
Once an employee has filed a complaint of harassment, or an employer otherwise learns of harassment (even if it hasn’t been reported), employers should immediately launch an investigation. It is crucial that allegations of harassment are investigated promptly, completely, and objectively.
Conducting prompt and thorough workplace investigations inspires the confidence and trust of good employees and may deter the undesirable behavior of problem employees. Additionally, the best and most defensible employer actions are generally those that are predicated on solid, provable facts obtained during an investigation.
For assistance implementing or reviewing effective policies and practices regarding sexual harassment, please feel free to contact Tom Green, Amanda Smith, Katie Basch or any other KWW attorney.