By Michael C. Terrell and Melissa A. Macchia
The #MeToo movement has rocked the workplace lately with women and men speaking out about acts of harassment that they have suffered on the job at the hands of their supervisors and co-workers. As a result, unlawful sexual harassment is arguably the most significant area of liability facing employers today. Employers should therefore expect more employees to report sexual misconduct and must be ready to act appropriately.
The #MeToo movement has highlighted the essential need for employers to remain informed and take precautionary measures to ensure that acts of sexual harassment, and related discriminatory acts, are not occurring. Before diving in on how to prevent sexual harassment in the workplace, it is first important to understand exactly what constitutes sexual harassment. Unlawful sexual harassment under Title VII can take the form of unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
1. Submission to such conduct is made a term or condition of an individual’s employment (commonly referred to as “quid pro quo” sexual harassment), or
2. Such conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive working environment (commonly referred to as “hostile work environment” sexual harassment). In addition, to be actionable under Title VII, the conduct complained of must be because of an individual’s gender. Accordingly, even non-sexual conduct may constitute sexual harassment if it is directed at an individual because of his or her gender.
Several examples of conduct that may constitute sexual harassment include:
• Making offensive remarks about looks, clothing, and/or body parts;
• Touching in a way that makes an individual feel uncomfortable;
• Telling sexual jokes; and
• Using derogatory words and phrases based on gender.
Unlawful sexual harassment is not confined to acts that take place inside of the workplace during working hours. Rather, unlawful sexual harassment can also occur outside of the office, such as during off-site meetings or during “after-hours” events. Moreover, an employer can be held liable for sexual harassment committed by any employee, not just management-level or supervisory employees. In addition, under Title VII, an employer also may be held liable for acts of sexual harassment by non-employees, such as contractors, vendors, customers and visitors.
Because unlawful sexual harassment may occur inside or outside of the workplace and can involve any employee and even non-employees, employers should create a comprehensive plan to prevent claims of sexual harassment. The two major elements of such a plan include:
1. A clear, written anti-harassment policy, and
2. A well-defined procedure for receiving, investigating and responding to claims of harassment.
First, the written policy should contain a firm and unambiguous statement that unlawful harassment and discrimination is prohibited by law, is contrary to company policy, and will not be tolerated under any circumstances. The policy should also define harassment, as well as discrimination, and include examples of specific prohibited behavior. It is also important that the policy instruct employees on how to report incidents of alleged harassment and assure employees (both victims and witnesses) that they will not be subjected to retaliation. The policy should be distributed to every employee at the time he or she is hired and each time the policy is revised or updated. Employers should keep the policy — whether on paper or electronically — in an area that is accessible by all employees.
Second, the employer must have a procedure that is strictly followed once a complaint of harassment is received. Most importantly, employers must have a procedure in place to carry out an effective investigation that is prompt, fair, and thorough. It is critical that any employees involved in the investigation know to keep all information confidential as claims of harassment include very sensitive and emotional situations. Keeping these situations confidential will help ensure that victims of harassment are not afraid to lodge their complaints and will minimize any risk of liability for defamation. It is also critical to instruct employees involved in the investigation that retaliation against the victim or any individual who provides information during the investigation is strictly forbidden. An employee is protected against retaliation under Title VII if he or she makes the claim or provides information — the claim or information need not actually be found to be valid, just made in good faith.
While it is important for employers to take these steps to avoid sexual harassment in the workplace, it is equally important that employers prevent employees from excluding women —which has been a very real backlash caused by the #MeToo movement and is in and of itself discriminatory. Though the #MeToo movement has been instrumental in escalating awareness in the workplace and advising employees to think twice about what is acceptable at work, it has also caused an exclusionary attitude toward women especially due to the fears of their male co-workers being the subject of a claim of harassment. As a result, employers should not lose sight of the potential for this hidden discriminatory conduct, while also staying mindful of preventing harassing conduct.
While established policies and procedures are extremely important, employers should regularly train supervisors and management-level employees on these policies and procedures. Training will not only ensure that employees are advised on the employer’s expectations and minimize the employer’s potential for liability, but it will also show employees that the employer is taking the #MeToo environment seriously. Supervisors, as opposed to a human resources department, are with their employees daily and can serve as a front line of an employer’s defense. Supervisors have a better ability to foster a respectful and inclusive workplace environment among co-workers and to ensure that male and female employees are not being subjected to unlawful harassment or discrimination.
Simply put, a plan without training is meaningless.•
• Michael C. Terrell is a partner in Taft’s employment, labor and litigation practice groups. Reach him at firstname.lastname@example.org. Melissa A. Macchia is an associate in Taft’s employment, labor and litigation practice groups. Reach her at email@example.com.