To no one’s surprise, my life as an employment lawyer for the last two months has focused primarily on one issue—sexual harassment. I have conducted several investigations and advised numerous employers on this issue recently because the national news and the #MeToo movement have had a direct impact on employers in the Texas Panhandle area, including some of my smaller employers.
Female employees nationwide and locally obviously feel freshly empowered to say something about any mistreatment and to expect that their complaints will be seriously addressed. As Oprah Winfrey predicted at the Golden Globes awards ceremony, “For too long, women have not been heard or believed if they dare speak the truth to the power of those men. But their time is up. Their time is up.”
While the recent sexual harassment focus is inspiring to many women as a political call to arms, business owners and human resources directors are trying figure out how to hear and handle the resulting complaints with compassion, but also with practicality. That’s where your employment lawyer can help.
Any claim of sexual harassment is what we employment lawyers consider an emergency for your company. When an employee alerts you to a problem, you have to spring into action immediately to make the complainant safe, undertake a thorough and impartial investigation of the claim and finally, resolve the matter with the appropriate discipline. At that point, it is too late to improve upon your written policy or regret a bawdy joke that you recently told.
If you are a business owner or manager in a company with at least 15 names on the payroll, you would be wise to expect to face a sexual harassment complaint sometime in the near future, and to take these six steps now to lessen the sting of such a complaint:
- Personal Restraint: Clean up your own act if you haven’t already. Make sure that everything you say at work or within earshot of any employee or customer is appropriate, never sexual and not prejudiced in any way. Anything even remotely racist, sexist, homophobic, ageist, etc. should not come out of your mouth, or worse, your fingers (texts and emails are the strongest evidence against accused harassers right now). It doesn’t matter that you hate being told that you have to be “politically correct”. Any politically incorrect statements made by you can create lengthy and expensive litigation. Also, restrain yourself from touching any employee beyond a handshake. In the present climate, even something as seemingly innocuous as hugs and pats on the back may be unwelcome, so play it safe.
- Policy: If your company doesn’t have a well-written published policy prohibiting sexual harassment, you might as well get out your checkbook now. If you do have a written policy that describes what harassment is, how to report it, and prohibits retaliation against those who brought the problem to light, double-check that you have every employee’s signature acknowledging that policy (or your whole policy manual). You may also need to consider a policy about romantic workplace relationships that assures you are informed at the beginning of such a relationship and can take action to remove supervisory authority or to prevent an ugly response when the couple breaks up.
- Training: At least once per year, your company should require all employees (including those with supervisory authority all the way up to the president of the company), to attend a live two-hour training session that highlights what sexual harassment is and how to prevent it. The EEOC now expects trainers like me to also address bystander issues (coworkers who witness harassment but aren’t the victim) and civility training (teaching employees what is and isn’t appropriate talk and behavior). The attendance sheets for these training sessions and the actual presentation materials are very valuable to your defense if you get sued.
- Vigilance: Pay attention to what is being said and done by your managers and other employees and immediately correct anything inappropriate. You have to enforce something approaching a zero-tolerance policy towards sexual banter and behavior in your company. Also listen carefully when a supervisor criticizes or disciplines an employee to make sure that the opinions of that supervisor are not tainted by sexism or any other bias. Know the signs of a suspicious supervisor and take corrective action if you see them.
- Appropriate Reaction: Skepticism about the validity of harassment claims in general and any particular complaint that is made against your company is not going to help you now. The correct responses to any man or woman who raises a sexual harassment concern are an attitude of sincere concern and a promise of immediate action. Your first lines in this drama should be, “Thank you for coming forward. We know that is not an easy thing to do. We will promptly start an investigation into your complaint and we will keep you informed as to the outcome of the investigation and any action that we take. What can we do for you right now that will help you feel comfortable in the interim?”
- Employment Counsel: Immediately after you say those lines and the complainant leaves your office, call your employment attorney, whom you’ve just put on speed dial now that you gotten to the end of this article.