#METOO is Something No Employer Ever Wants to See Posted!!!
Workplace sexual harassment is finally in the spotlight where it belongs. No employee should ever feel threatened in the workplace by unwanted acts of sexual harassment or assault. Conversely, no employer should ever condone an atmosphere where its employees’ basic rights, including the right to work free from sexual harassment runs rampant. People who are speaking up today as victims of alleged sexual harassment or assault by other employees, or vendors or other customers are brave and deserve the utmost respect. No employer can or should shut its eyes to this scourge and those that do should be treated as harshly as the law provides.
Sexual Harassment is not a new phenomenon in the workplace. The U.S. Equal Employment Opportunity Commission statistics show that the number of sexual harassment claims received by the agency decreased slightly from 2010-2016. However, given all the instances of improper conduct in the news lately, from Hollywood personalities, to elected officials, to news personalities, and women in the workplace in general, we can expect a tsunami of filings alleging improper sexual conduct.
As if this activity created an epiphany of sorts, The U.S. Congress recently passed internal regulations mandating that each of its members receive sexual harassment prevention training. In the State of Illinois, the legislature similarly passed such a mandate. Mind you, these are the same people who passed the laws in the first place and now are saying they need to be trained on what they enacted so they are sensitive to the law’s prohibitions!
Before addressing what an employer should be doing in response to improper sexual conduct in the workplace, employers should understand that not all workplace harassment is illegal; rather, workplace harassment is typically actionable if it is based on a protected category. Harassment is a form of discrimination. Under Federal/State law, age, race, color, ethnicity, religion, national origin, genetic information, gender, pregnancy, disability status and veterans status, among others can form a basis for discrimination in the workplace. Sexual harassment is a clear form of discrimination.
Employers can be liable for sexual harassment, based on sex if that harassment is severe enough to alter job conditions. No one would argue that unwanted conduct of a sexual nature would not alter workplace conditions. Just some examples of unwanted conduct in this arena include touching of bodily parts, hugging, kissing, offensive or suggestive emails or sexting, crude jokes of a sexual nature, offensive websites or photographs or cartoons, conditioning a certain workplace benefit upon the return of a sexual favor. While courts have held that the conduct must be severe and pervasive, a single instance of unwanted sexual conduct may suffice to establish liability for an employer.
There are instances where enlightened employers, (and hopefully those reading this post who adopt proper policies and procedures) can establish a defense to liability if they can show they exercised reasonable care to prevent and promptly correct harassment and the employee unreasonably failed to take advantage of preventive or corrective opportunities.
Listen up employers!!!! According to the EEOC, the basic requirements for an effective program in the workplace designed to prevent and address workplace harassment include the following:
- A clear explanation of the prohibited conduct. A policy that describes what harassment is, and explains that harassment is neither allowed nor condoned in the workplace- by anyone (regardless of title or position!)
- The policy must make it clear that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
- A reporting mechanism for employees to voice complaints when confronted with harassment or retaliation. Outline different avenues for employees to report misconduct taking into account the fact that the complaints may be against the person at the top of the chain of command.
- Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
- Effective communication and training on the policy. Merely having a policy that is never trained is of no use. Training should occur at least annually and should reach every single employee, no matter what level or position he/she holds within the company. There must be a firm commitment from the very top level of company executives.
- A thorough, fair, prompt and impartial investigation must be conducted. The key is to ensure that no one is above the law and the investigative team cannot be unduly influenced by the position of those being investigated.
- Assurance by the employer that it will take immediate and appropriate corrective action when it determines that harassment has occurred.
Employers should also be wary of retaliating against employees who bring forth claims of sexual harassment. Retaliation is not limited to the bonehead move of terminating and employee who complains, but also includes harassing, isolating or ostracizing the complaining employee, changing his/her workplace conditions or responsibilities. In 2016, over 45% of all sexual harassment charges with the regulatory agencies also included charges of retaliation. While employees who complain about harassment are not entitled to protection from legitimate criticism or business related changes, front line managers should be trained on how to recognize retaliation and avoid it at all costs.
The bottom line for employers is that they must practice commitment, communication and credibility. It is an employer’s responsibility to ensure potential complainants understand they have the right to work in an environment free from this most troubling aspect of the work relationship and that they will not be retaliated for coming forward. Not only does workplace ethics require this high a standard, but human decency at all levels demand it as well. Even one complaint of #MeToo is too many!
With over 33 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the employment laws. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website.