Sexual Harassment In The News Likely To Lead To Uptick In Claims

Whenever the topic of sexual harassment reaches mainstream media outlets, people are bound to take notice. And when sexual harassment allegations involving a prominent public figure like Bill O’Reilly appear in the headlines of just about every major national and local media source, your employees are undoubtedly aware.

Given that this is perhaps the most high-profile situation in decades involving sexual harassment allegations, you can expect that employee awareness about the issue will be raised for the foreseeable future. And the heightened interest in this matter may cause an increased number of sexual harassment allegations – both meritorious and not – in the weeks and months to come.

For this reason, you should make sure your organization takes proactive steps to ensure a workplace environment free of harassing behavior, and is prepared to swiftly and thoroughly address any allegations of improper conduct that do arise. Here are some action steps you should consider:

1. It Begins With Effective Workplace Policies

The defense of many harassment claims begins with an examination of your company policies. By this point, nearly every employer in the country has a set of written (or electronic) employment policies that include a prohibition on sexual harassment. You should be able to easily demonstrate that each new employee was issued, or has access, to these policies, so you can remove any doubt about whether your employees were informed of your rules.

But are your harassment policies effective? To be most effective, they should contain the following:

• A clear message that your organization has “zero tolerance” for unlawful harassment;

• A definition of what constitutes prohibited harassment; 

• Several examples of conduct that you would consider to be in violation of your policy; 

• A call for employees to immediately report conduct they witness or experience they believe to be harassment; 

• Several avenues for employees to register complaints, including alternate reporting mechanisms if they believe their immediate supervisor is part of the problem; and 

• A promise that employees reporting harassment will not be subject to retaliation. 

2. Get On The Training Train

It is vitally important that you train your personnel on your policies. It’s a good practice to include a review of your policies at the orientation stage for all new employees, but it’s perhaps even more helpful to train your managers on how to properly receive complaints and what they should do if a complaint falls in their lap (hint: immediately get human resources involved). In fact, a number of states require sexual harassment training, so check with your labor and employment attorney if you are unsure about what is required of your organization.

3. Investigations Are Vital

It is often hard to determine exactly when a harassment complaint is received, as employees may not use the words “harassment” or “hostile work environment” when lodging a complaint (or, conversely, may incorrectly use these terms when describing minor workplace conflicts). For this reason, trained human resources professionals or managers should speak with the employee in question to determine the full extent of the problem as soon as possible. It is generally advisable to get the employee to provide a written account of the complaint with as much detail as possible. This will help to ensure that all allegations are investigated.

Once it is determined that the complaint includes a possible harassment component, your human resources team should launch a swift and thorough investigation using impartial personnel. Your investigation team should ask open-ended questions to get the full story, but not be afraid to ask specific follow-ups to nail down particulars. They should also review any pertinent email messages, text messages, other electronic communications, or other documentation that might be relevant.

During your investigation, you may want to ensure that the employee making the complaint is not forced to work side-by-side with the employee who is alleged to have violated your policy. Some employers choose to place the employee accused of harassment on leave pending the outcome of the investigation; such leave can be paid or unpaid depending on the circumstances.

Finally, the investigation should be kept as confidential as possible. Don’t promise the accuser that the complaint will not be shared with anybody else. However, you can inform the accuser that you will make every effort to keep the matter confidential to the extent possible, but that your legal obligation to fully investigate the matter may lead to the inevitable disclosure of information.

 4. Make Timely Follow-Up Decisions

If you conclude that a violation of your policy has occurred, you then must take immediate and appropriate corrective action designed to ensure that the offending employee no longer repeats the improper behavior. You have several options available: the most common include a verbal warning, written warning, suspension, mandatory training, demotion, and of course, termination of employment. Make sure you document whichever course of action you decide, and follow up with the employee who made the complaint to inform them you have taken steps designed to ensure they no longer face that same conduct in the future.

If you are unable to substantiate the allegations, inform the employee. Don’t tell them you think they were lying (unless, of course, you have solid proof that the accusations were completely fabricated). Instead, let them know that you appreciate that they brought the matter to your attention, but that after a thorough and impartial investigation, you were unable to uncover evidence substantiating the allegations. You can let the employee know they are welcome to lodge further complaints if they believe similar behavior occurs, while reminding the employee who was the subject of the investigation that they remain subject to your policies.

 5. Get Legal Counsel Involved

Finally, you will want to bring your workplace lawyers into the loop as soon as possible. In a perfect world, you’ll work together with your labor and employment attorney to develop your harassment policies and you will have their blessing on them long before any situations arise. However, even if your lawyer was not involved at the drafting stage, it is a good idea to get them involved once a complaint has been raised. The guidance and feedback they can provide, behind the scenes or not, will be invaluable in ensuring you are handling all of your legal responsibilities while creating a workplace free of harassing behavior.

For more information, contact your regular Fisher Phillips attorney.

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This Legal Alert provides an overview of a developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.