Follow ACC Docket Online:  

Sexual Harassment in the US: Don’t Be a Trending Topic

HR Column
S exual harassment has long been an issue in the workplace. Recent scandals, however, have burst through the dam of silence and flooded the media, prompting a public discussion on the surging problem.

On October 5, the New York Times published a detailed article of sexual harassment claims against film producer Harvey Weinstein. A deluge followed, with approximately 57 women accusing Weinstein of sexual harassment or rape. Lawsuits followed, he was sacked from the board of his company, his wife left him, and the British Academy of Film and Television Arts (BAFTA) suspended his membership. Harvard University revoked his Du Bois medal, previously awarded for contributions to African-American culture. The British Film Institute stripped Weinstein of his fellowship. The Oscars expelled him, an investigation commenced in the United Kingdom, and the Producers Guild of America banned him for life.
Since Weinstein, at least 20 prominent men have faced sexual misconduct allegations, including Rep. Jeremy Durham and Roy Price, head of Amazon Studios. That number is rising daily thanks to the #MeToo movement, which encourages victims of sexual harassment and assault to step forward and name their offenders.

The rise in sexual harassment allegations can be disconcerting for HR and law departments. However, there is much that employers can do to reduce this risk in the workplace, and promote an environment of physical and emotional safety for employees.

The stark reality

In 2016, the US Equal Employment Opportunity Commission (EEOC) convened a task force to evaluate harassment in the workplace. It found:
•    Sexual harassment persists because many employers do not clearly communicate that they will not tolerate harassment, nor do they sufficiently address the problem when it arises;
•    Employers have insufficient anti-harassment policies and fail to hold employees accountable under the policies they do have;
•    Employers are more focused on litigation prevention than on preventing harassment;
•    An estimated 75 percent of people who experienced harassment did not report it; and,
•    Harassment is costly. In 2015, the EEOC recovered US$125.5 million for harassment claims during its pre-litigation process, and an additional US$39 million in lawsuits involving harassment.
Harassment costs more than litigation fees. A 1994 Merit Systems Protection Board study estimated that over a two-year period, sexual harassment cost the government a total of US$327.1 million: US$24.7 million in related job turnover, US$14.9 million for sick leave, US$93.7 million in decreased productivity of for individuals, and US$193.8 million for workgroups.

Clarifying the boundaries

Sexual harassment violates Title VII of the US Civil Rights Act of 1964 and corresponding state and local laws. It can take two essential forms:

1. Quid pro quo harassment
Harassment committed by a person who can make formal employment actions, such as hiring and firing. An example is a manager who conditions a promotion on sexual favors.

2. Hostile work environment
A work environment is deemed hostile, if it is (1), subjectively abusive and offensive to the person being harassed, and (2) sufficiently objectively offensive that a “reasonable person” would find the environment to be hostile or abusive.

The harasser does not need to be in a position of authority, and can be a coworker, client, customer, etc. This type of harassment can include: cat-calling; ogling at or exposing body parts; making degrading jokes, gestures, or discussion of sexual activities; unwanted touching; and using crude and obscene language.

Avoid common traps

Broaden the definition of “workplace”
The workplace can be anywhere the worker is carrying out job functions, including:
•    The employer's office, and common areas shared by other businesses;
•    An offsite location where work is performed, such as the employee’s home or a client or supplier site; and,
•    Social events related to or sponsored by the employer.
Thy brother's employee
Sexual harassment is not limited to workers on the same employer's payroll. It can extend to employees of a different employer, customers, contractors, and other third parties.

He or she who hears the evil
The victim of sexual harassment does not have to be the intendant recipient of the information. For example, sexually charged banter between two consenting coworkers can constitute harassment for a third person who overhears them.

Lack of emotional intelligence is not a defense
The fact that the originator of the harassing behavior finds it acceptable is not a defense to sexual harassment. This applies if the recipient does not articulate that the words or actions are unwelcome, or if the recipient appears to join in and enjoy or act amused by the conduct.

What employers can do

In addition to being a sound business practice that creates a safe and productive environment for employees, proactively minimizing harassment and discrimination minimizes shareholder and reputational risk. It also protects the employer from being held vicariously liable for employee misconduct. There is so much you can do that what follows is not an all-inclusive list.

1. Cultivate culture. The EEOC found that the workplace culture has a significant impact on whether harassment flourishes or never surfaces to begin with. Establish the right tone from the top: a steady drumbeat of disapproving such behavior and encouraging people to report it. Managers and leaders can be recruited to promote the message in staff meetings and presentations.

2. Eliminate sacred cows. Employees may not always believe what you say, but they will believe what you do. Showing favoritism toward certain employees because of job performance, perceived value to the organization, or rank will undermine the best aspirations of any program. Your policy should apply equally to everyone in the organization from the CEO to the lowest level employee without exception. Publicly communicate this fact and consistently enforce it.

3. Take the temperature. Include questions in employee surveys targeted at identifying the extent to which sexual and other types of harassment are a problem in the workplace. Remember that 75 percent of victims in one study failed to report.

4. Clear policies. Develop unambiguous policies prohibiting harassing conduct and providing multiple outlets for employees to report. Employees should be confident that complaints will be treated seriously and confidentially every time, and they will not face retaliation for reporting.

5. Clear procedures. Establish unequivocal procedures for investigating claims, and follow them consistently. Regardless of the outcome, every allegation should be investigated, and at a minimum, the final outcome of the investigation should be shared with the complainant.

6. Clear investigative roles. Clarify the roles and procedures of all parties involved in the investigative process. For example, determine when human resources will investigate a claim, compared to when the legal department or outside counsel will conduct the investigation. When HR conducts the investigation, clearly define the role of the legal department in the investigative process, taking into account considerations of privilege and work product.

7. Document procedures. Enumerate the steps taken to investigate each allegation, providing status updates at critical points. From there, record all decisions flowing from the investigation and corrective action taken.

8. Efficient investigations. Investigations should be efficient and corrective action prompt and proportionate to the infraction. Beware of declaring a "zero-tolerance policy," which may inaccurately signal to employees that every infraction will be addressed with a sledgehammer, regardless of severity.

9. Periodic training. Periodic staff training should include examples of acceptable and unacceptable behaviors and reinforce this knowledge. Managers should understand that they should take every allegation seriously and act on complaints according to company policies and procedures.

Sidebar references

EEOC Harassment Task Force Results and Recommendations

Ask Aliya: Building a Work Culture that Prevents Sexual Harassment

Examining Sexual Harassment in the Workplace

9 Tips for Accommodating Transgender Employees in the US

10 Tips for Conquering Cross-Border Internal Investigations

About the Author

Spiwe PierceSpiwe L. Jefferson is general counsel of ChristLight Productions Ltd., LLC, Lifetime Fellow of the American Bar Foundation, and 2016 Diversity MBA Top 100 under 50 Diverse Executive Leaders. She is a member of the ACC employment and labor, law department management, intellectual property, and litigation sections.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.