Over the last year, there have been a number of high profile sexual harassment cases. Employees have been fired, lawsuits have been filed and reputations (individual and corporate) have been destroyed. The #MeToo movement is expanding, and our society is now focused on addressing the widespread issues of sexual harassment and assault. For employers, it is important to provide employees a safe work environment free of harassment, sexual or otherwise. At the same time, employers must also consider how to protect themselves from legal liability from improper workplace conduct beyond their control. A few simple steps can help prevent your company from being the next front page story.
- Have a Comprehensive Harassment Policy: A comprehensive harassment policy addresses ALL types of harassing behavior, including harassment based on race, color, sex, gender, age, national origin, sexual orientation, religion and disability. Having a comprehensive harassment policy is the best way to detect problems and defend against a lawsuit. If the employer can demonstrate that it exercised reasonable care to prevent and correct the harassing behavior and the employee unreasonably failed to take advantage of the opportunity, then the law provides a defense to the harassment claims. Accordingly, it is extremely important to have a comprehensive harassment policy in place and have employees acknowledge in writing that they have read and understand the policy.
- USE the Harassment Policy: Investigating allegations of harassment and promptly fixing the problem is the best way to avoid litigation.
- ASK FOR HELP!: Employers frequently ask the wrong questions during interviews and fail to properly document the steps taken to address harassment concerns. Lawsuits are serious business. A short phone call with a lawyer or other expert helps ensure that the company is investigating properly and spots other legal issues with the allegations.
- Train, train, train!: It is important to have annual training for employees, especially supervisors and managers. Supervisors and managers need to be able to spot signs of harassment and know to take all allegations seriously. Training not only lets employees know that harassing conduct will be taken seriously in the workplace but also gives an employer documentation to show that the employee was aware of the current harassment policies.
By using these four steps, an employer will be well on the way to taking efforts to prevent harassment and creating the documentation needed to defend against allegations of illegal workplace conduct.
W. Jonathan Martin II is a partner at Constangy Brooks, Smith & Prophete LLP. He focuses his practice in defending companies in employment discrimination litigations and related state law matters.