United States: Legal Compliance In A Harassment-Conscious Environment

Last Updated: November 14 2017
Article by Daniel A. Kaplan

As noted in our Legal News Update - Me Too, But Now What? What Board Members Need to Know About Workplace Sexual Harassment - allegations regarding workplace harassment have recently been a major focus of traditional and social media outlets. From the #MeToo campaign to Susan Fowler's blog testimony about her experiences involving harassment in the corporate world to the Harvey Weinstein NY Times sexual harassment investigation and upheaval in Hollywood, workplace harassment is front and center.

This particular blog post is not going to recount all of the recent occurrences, nor will it provide a history lesson on the genesis of sexual or other harassment. Rather, we will provide you with some practical compliance advice and recommendations as to what you should be doing to ensure that your company stays ahead of the concerns that are rocking America.

Before addressing what you should be doing, you must understand that not all workplace harassment is illegal; rather, workplace harassment is typically actionable if it is based on a protected classification. Harassment is a form of discrimination. Under federal law, age, race, color, ethnicity, religion, national origin, genetic information, gender, pregnancy, disability status, and veteran status, among others, can form the basis for a claim of discrimination in the workplace, and can also, therefore, form the basis for a harassment claim.

The basic requirements for an effective program in a workplace designed to prevent and address workplace harassment include the following:

  • A policy that describes what harassment is, and explains that harassment is neither allowed nor condoned in the workplace - by anyone (irrespective of title or position).
  • In addition to addressing harassment, the policy should also make clear that retaliation for reporting harassment or participating in the investigation of harassment is also prohibited.
  • A reporting mechanism for employees to voice complaints when confronted with harassment or retaliation. Good practice is specifically identifying at least two reporting routes. Involve persons of different genders to allow employees to communicate with whomever they feel most comfortable.
  • Effective communication and training on the policy - which should occur at least annually. In some states, to constitute sufficient training, it must be at least two hours in length and must cover various subjects and topics (e.g., in California). The training should be given to everyone in the company - at all levels, and it should be treated as an important and mandatory aspect of employment at the company. It should have the support of the very top employees in the organization.
  • Resources for conducting an investigation when complaints regarding policy violations are received. Harassment investigations can be conducted with in-house or outside resources. 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. Therefore, if the alleged harasser is someone with significant authority within the organization, it may be more prudent to involve outside resources for the investigation. Alleged harassment in the workplace cannot be ignored; it must be acted upon.
  • Authority to take corrective action and all steps necessary to ensure that misconduct in violation of the policy does not recur. If an adverse employment action has occurred (a benefit reduced, denied; a position demotion, etc.), it needs to be corrected if it was the result of impermissible harassment. In addition, an employer must take whatever action (including termination) necessary to ensure that the harassment does not recur. Foley L&E attorneys provide counsel and advice to their clients on all aspects in this space: (i) Sexual and Other Harassment Policy preparation or review (and update); (ii) Sexual and Other Harassment Policy training (for hourly personnel, supervisors, managers, C-Suite employees, and Board members); (iii) Diversity and Inclusion training; (iv) Affirmative Action Plan preparation and development; and (v) conducting and advising on workplace investigations (relative to harassment complaints or other alleged wrongdoing). If we can be of assistance to you or your company, please contact your Foley attorney to be directed to the appropriate resource.

The renewed focus on workplace harassment means that harassment is still a problem in American workplaces. Workplace harassment is detrimental: It affects the company's bottom line (if there are violations), reputation, employee recruiting and retention, and the ability to attract, secure and maintain clients and business. Rooting out and taking those steps necessary to ensure unlawful (and all other forms of) harassment is not occurring in your workplace is simply good business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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