Social media’s recent #MeToo movement, which was ignited by the allegations of sexual harassment and abuse lodged against Hollywood producer Harvey Weinstein, has drawn attention to the continued prevalence of sexual harassment and sexual abuse in our society, and the need for employers to review their policies and procedures for addressing this workplace issue. This blog addresses best practices for addressing and responding to sexual harassment in the workplace.
- Written Policy: It is essential for employers to adopt a sexual harassment policy. At a minimum, the policy should prohibit unlawful quid pro quo and hostile work environment harassment. Quid pro quo harassment occurs when submission to or rejection of a superior’s unwelcome sexual advances or requests for sexual favors is used as the basis for employment decisions affecting the employee. The typical example is the employee who refuses her superior’s advances and is terminated or demoted as a result. Hostile work environment harassment is verbal or physical conduct of a sexual nature that is so frequent, severe and pervasive that it unreasonably interferes with an individual’s work performance or creates an intimidating, hostile and offensive work environment. Many employers choose to adopt a zero tolerance policy, which prohibits inappropriate workplace conduct that may not rise to the level of being unlawful under state and federal law. For example, a few isolated sexual jokes would typically not meet the legal definition of workplace harassment; however, this conduct might run afoul of the employer’s zero tolerance harassment policy and subject the offending employee to discipline.
- Complaint Process: In addition to defining prohibited harassment, an employer’s policy must also set up a process by which an employee can bring a complaint of workplace harassment. The complaint procedure should include alternate persons to whom an employee may complain. This ensures that the employee is not required to bring a complaint to the very person engaging in the harassment. The policy should not dictate any particular form of complaint. An employer will be legally required to act on a complaint of sexual harassment whether it is communicated in oral or written form and no matter how formal or informal it is.
- Investigation: Once a complaint is received, the employer’s legal duty is to investigate to determine if harassment is occurring, and, if so, to take appropriate action to correct the harassment and prevent it from recurring in the future. At the very minimum, the employer’s investigation should encompass talking to the complainant and the alleged harasser and anyone else who has knowledge of the situation. Each conversation should be documented in writing. Employers may choose to engage an independent third party to conduct the investigation. This is wise if the company is not experienced in conducting internal investigations, or there is concern about whether internal personnel can conduct an investigation free from influence by the alleged harasser.
- No Retaliation: Many victims do not bring their situation to light out of fear of retaliation by the employer and/or the alleged harasser. Retaliation is itself unlawful under federal and state law. An employer’s workplace harassment policy needs to state that there will be no retaliation of any kind taken against any employee who in good faith makes a complaint of sexual harassment and/or participates in an investigation or proceeding relating to the harassment.
- Training: Once an adequate sexual harassment policy is in place, employers need to distribute the policy to employees and conduct workplace training so that employees from the top down understand what conduct is prohibited, the process for bringing a complaint of sexual harassment to management’s attention, and the prohibition against retaliation.
- Discipline: Employers must be ready to take appropriate corrective action, up to and including immediate discharge, if a violation of the policy is found. There can be no exception for harassers who are owners or who are in executive or top leadership roles. In fact, Wisconsin law imposes stricter standards of liability when the harasser is an owner of the company.
The #MeToo effort should prompt you to review your company’s policies and procedures relating to workplace harassment. McCarty Law’s employment and labor law practice group is able to assist you with questions relating to workplace harassment and prevention.
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