Businesses That Fail to Protect Employees Face Legal Peril
October 15, 2017
This article appeared in the October 15, 2017 edition of LNP.
It never fails – I tell someone that I am an employment law attorney and they ask “like discrimination and sexual harassment?” I say yes, and they respond, “but sexual harassment isn’t really a thing anymore, is it?”
Yes, yes it IS a thing. Sexual harassment continues to exist in workplaces all across the country. Indeed, the Equal Employment Opportunity Commission reported that, in 2016, more than 26,000 charges were filed alleging sex discrimination, which includes sexual harassment claims. This year alone there have been a least four headline grabbing news stories about sexual harassment in the workplace – Silicon Valley, Uber, Fox News and most recently, Hollywood, in the person of mogul, Harvey Weinstein.
Sexual harassment is not a thing of the past. It is not a “Mad Men”-era phenomenon and it did not disappear with liquid lunches and smoke filled boardrooms. The headlines serve as a reminder of this. They grab our attention and get us talking – at least until the next news cycle. But, if you’re an employer, talking about the headlines is not enough. While your business may not be splashed across the headlines, it is the quiet cases of sexual harassment that you need to worry about.
Sexual harassment claims are serious business. Employers are expected to keep their employees safe and when they don’t, the economic repercussions can be disastrous. The law strives to put the victim in the same position that he or she would have been if the harassment never occurred. Thus, sexual harassment damage awards can include an amount for back pay (from the date of harassment through the date of redress), front pay, compensatory damages for emotional harm and mental anguish and, sometimes, punitive damages. The employer also may be required to pay the victim’s attorneys’ fees, on top of its own costs of defense. Attorneys’ fees alone can total well into six figures.
Employers must also be mindful of other “costs” associated with sexual harassment claims – reduced employee morale, increases in employee depression, anxiety and other health conditions, lost productivity, employee turnover and reputational harm, to name a few.
So, what is an employer to do? Start by answering the following questions:
Do your employees and your managers know how to spot sexual harassment? It’s about more than sexual propositions with the promise of a promotion. Sexual harassment includes, among other things, gender stereotyping (belittling a male employee who doesn’t act “manly” enough); treating employees differently because of their gender (the male executive who refuses to take female employees on sales calls); telling jokes of a sexual nature; displaying pornographic cartoons on the bulletin board outside the ladies restroom; leering and sexual gesturing.
Do you foster a culture of zero tolerance? Employers must affirmatively denounce sexual harassment. Employees must be aware of their right to raise, and also know how to raise, the issue of sexual harassment. Employers should provide employees with more than one mechanism of reporting and more than one person to whom they can report. Imagine if the harasser is the one person to whom harassment claims are to be reported!
Do your managers know what to do if they see or are made aware of harassment? The law asks whether the employer knew or should have known about the harassment and whether the employer took steps to remedy the harassment. If an employee tells her department manager that her shift manager is pressing up against her back every time he checks on her work, and the department manager does nothing about it – the company will have a serious problem! Managers and supervisors must be trained to escalate every report of harassment to see that it is promptly and thoroughly investigated.
Do you have investigative procedures in place? Are you confident in your ability to conduct an investigation? If not, consider a neutral investigator. It is much cheaper to hire an employment law attorney to conduct your investigation than it is to pay them to defend a lawsuit.
Do you enforce your policies and protect your employees? It may hurt to fire a top performing sales manager who likes to get frisky with his marketing assistants. But the lawsuit brought by those assistants will hurt more!
Answering no to even one of these questions should be a call to action! Revise your policies, implement training and sensitize your employees to the issue. Ignoring sexual harassment will not make it go away. Joking about it – much like Hollywood once did about Harvey Weinstein – will not diminish its effect. I’m sure Weinstein’s alleged victims weren’t laughing.