United States: Resolutions For A Harassment Free New Year

Last Updated: February 14 2018
Article by Laura H. Corvo

The year 2017 marked a seismic shift in the way the nation views sexual harassment. Time Magazine named "the silence breakers" as its Persons of the Year. The words "me too" went from a simple phrase, to a hashtag, to a movement. And, a deluge of claims of sexual misconduct and harassment exposed and toppled the giants of Hollywood, the news media, government, and so many other high profile industries. While some employers may take comfort in the fact that the stories of sexual misconduct and harassment that dominate the news involve the rich, the famous and the powerful, it is extremely naïve to assume that the aftershock-shock effects of the recent torrent of sexual harassment claims will not impact all employers in 2018 — even those smaller employers who operate in mundane industries.

As you reflect on the past year and make plans for a new one, it is a good time for all employers to take a hard look at the measures you take to both provide your employees with a harassment free workplace and insulate your company from liability for workplace harassment claims. Since resolution-making season is upon us, consider making these 5 resolutions to start your 2018 harassment-free.

Resolution 1 - Start With The Written Policies and Procedures.

Most employers know that it is necessary to have a written policy prohibiting harassment, discrimination and retaliation in the workplace. Such policies communicate to employees the behavior that will not be tolerated in the workplace and can be useful tools to defense attorneys trying to shield an employer from liability for claims of harassment. You probably have such policy as part of an employee handbook and distribute it to your employees when they start their employment. That is good. You probably require your employees to acknowledge receipt of the policy and keep a copy of their acknowledgement in the employee's personnel file. That is also good. But, simply having a written policy and making an employee acknowledge receipt will not guarantee a harassment-free work environment for your employees or absolve your company from liability for potential workplace harassment claims. To be effective, the policy also needs to be regularly updated and effectively communicated to your employees.

Because the case law regarding workplace harassment claims is constantly evolving and laws change all the time, we recommend that written policies be reviewed by legal counsel on a yearly basis to make sure they comply with current laws. But, complying with current law is only one aspect. Your written policies also have to be updated to reflect the reality of the world and business in which your company operates. Does your policy mention text messages, social media or other forms of electronic communications? If the answer is no, it is time to update your policy. Does the policy address harassment which takes place off-premises, at company sponsored social events and during business-related travel? If the answer is no, it is time to update the policy. Does your policy address all forms of harassment? While sexual harassment often gets the most attention, harassment on the basis of many other protected characteristics also is unlawful (including race, gender, gender identity or expression, religion, age, national origin, disability, sexual orientation, and the list goes on...). Does the policy reflect your correct office address, e-mail, phone number and person to whom an employee can file a complaint of harassment? If your policy designates Mary Jones (who resigned from the company 2 years ago) as the person to whom employees should bring their complaints or tells employees to deliver their complaints to the human resource office in a building that no longer exists, it is time to update the policy.

In addition to regular updating, you also need to regularly distribute the written policies to your employees. A written policy that is distributed to an employee only at the start of their employment is likely going to collect dust at the bottom of a desk drawer, remain hidden in some dark corner of a company intra-net page, or get tossed into a recycling can. Regular distribution of your written policies will help ensure that your employees remain aware that a policy exists and understand that your company takes the policy seriously.

Resolution 2 - Train, Train, Train.

While updating and distributing written policies prohibiting harassment is a good first step, you are not likely to achieve a harassment-free workplace or protect your company against potential workplace harassment claims if it is your only step. Would you require an employee to operate a drill press or run a new software program by simply giving the employee written instructions? Of course you would not. The same goes for workplace conduct. You have to do more than just provide employees with written policies prohibiting harassment. You also have to train your employees in what the written policies say, what the policies mean, and how your company expects its employees to conduct themselves in your workplace.

Supervisors, managers and executives need to receive special harassment training. They not only need to know how to conduct themselves in the workplace, they also need to know how to enforce the policies. This means they need to know what to do when an employee complains, what to do when they witness or otherwise become aware of harassment, and how to manage employees who have complained of or been accused of harassment.

Some states like California, Connecticut and Maine mandate employers to conduct harassment training. The EEOC strongly encourages employers to provide sexual harassment training to employees as part of its sexual harassment prevention program. And, given the current climate, training makes sense and is an effective tool to preventing workplace harassment and insulating potential liability.

However, many employers resist training. "The cost of training is not in our budget this year." The cost of training will pale in comparison to what you will spend in legal fees if you are sued for harassment. "It is too logistically complicated to get all of our employees together for training." The logistics involved in organizing employees for training are nothing compared to the resources you will need to dedicate to gather documents and prepare for depositions if you are sued. "But, if we train our employees, they will get "ideas" and be motivated to sue us." Today's climate and the constant barrage of news stories revealing workplace harassment claims have already given your employees all the fodder they need to file harassment claims. Your failure to train your employees will only enhance those claims.

Resolution 3 - Investigate.

Given today's environment, there is a strong chance your company will receive at least one complaint of workplace harassment in 2018. Does that mean you need to fire every employee who is accused of harassment? No. While some of the complaints you receive may have merit, many may not. Regardless, you should investigate every complaint of workplace harassment you receive – even those complaints that emerge from the employee who complains about everything, the employee who has been disciplined for performance or the employee who tells you they don't want you to investigate.

Your failure to properly investigate a complaint of harassment (even a meritless claim) can be damaging. It can and will hurt you in defending against a meritless claim. It may also cause you to neglect to correct real harassment that may be taking place in your workplace. And, it may have a chilling effect on those employees who have claims but don't bring them to your attention because they assume you won't do anything about it. Because the way in which you handle an investigation is critical and because workplace harassment investigations are often complex, they should typically be performed by human resource professionals who are trained to conduct such investigation. Or they should be done by, or with, the assistance of legal counsel.

Resolution 4 - Open Your Eyes, Your Ears and Your Doors.

The stories of sexual misconduct and harassment that were revealed in 2017 followed two common patterns. First, the boards of directors and the executives feigned shock and ignorance when the faces of their brands were accused of egregious sexual misconduct and harassment. "We are shocked by these allegations. This is the first complaint we ever received. We had no idea the bad behavior was happening," and etc... Second, those cries of shock and ignorance were quickly undercut. Indeed, each complaint of bad behavior was followed by another, and then another, and then another, and so on. And each complaint was rapidly followed by employees and former employees clogging social media with anecdotes of how the alleged misconduct was the worst kept secret in their particular industry.

The biggest lesson you should learn from the harassment fallout of 2017 is that ignorance of harassment is not going to be tolerated. While for decades, employers have been held to a "known or should have known" standard of liability in workplace harassment claims, many employers fail to understand that they can be on the hook not just for the harassment that is brought to their attention, but also harassment which they should have known about.

So how do you protect yourself against a "should have known" standard? In addition to implementing written policies and conducting training, you have to open your eyes, your ears and your doors and both know and address what's going on in your workplace. If you've heard rumblings about "that guy in purchasing who does x, y or z", or your gut tells you something isn't sitting right with "that new employee in the mailroom", don't hide in your office, contact human resources and start to address the issue.

You also need to address harassment – even the harassment that doesn't seem to be that big a deal. If you hear an inappropriate joke or see an inappropriate glance, don't chalk it up as nothing or write it off because no one seemed to be bothered by it. Nip it in the bud. Tell the employee that the conduct is not acceptable in your workplace. If you don't address the conduct while it is small, it will inevitably fester and lead to something big.

Resolution 5 - Be On Your Best Behavior – A Harassment Free Workplace Starts At The Top

Everyone from the top of your organization on down needs to be committed to a harassment free workplace and exhibit behavior that that is consistent with that commitment. Employees (and plaintiff's attorneys) are going to be gunning for the top, especially after seeing the unfolding of so many stories that exposed sexual harassment at the highest levels of major organizations. Now, you may take solace in the fact that the people who run your organizations are probably good people who would never engage in the egregious sexual misconduct of which so many were accused in 2017. But not having a sexual predator running your company does not mean that you have a harassment free workplace or that your highest level executives won't be sued for harassment.

The people at the top have to be on their best behavior and set the tone for everyone else in the organization. That means they can't tell inappropriate jokes (even if people laugh at them). They can't use slurs, epithets or other inappropriate language (even if employees don't seem to mind when they do). They can't leer or touch or engage in sexual banter (even if they are just being playful). And, if you have a problem at the top of your organization, you must address it. It is not an easy decision to fire or discipline someone who is making money or helping your organization grow. But if that person is engaging in harassment, difficult decisions may have to be made, not just to avoid the legal exposure of a potential lawsuit, but, in light of today's environment, to avoid the damage to your business if the harassment is exposed.

In sum, we do not yet know the full impact of the fallout of the harassment claims which were revealed in 2017. But, if you start by taking a hard look at your efforts to prevent harassment and adopt these resolutions, you could be on your way to a harassment free 2018.

Wishing you a wonderful holiday and a happy, healthy and harassment free New Year.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions