The topic of preventing sexual harassment is at forefront of our national conversation. Allegations of sexual harassment have engulfed all industries, including, entertainment, news, Hollywood, and government. In December, U.S. Supreme Court Justice John Roberts included in his annual state-of-the-federal-judiciary report the following astonishing statement: “We have a new challenge in the coming year. Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.” Justice Roberts’ statement came a few weeks after a veteran federal appeals court judge based in San Francisco abruptly retired when allegations surfaced that he had acted inappropriately with female law clerks.
In the wake of a flood of publicized sexual harassment incidents in the past 18 months, employers are well-advised to take stock of their own procedures and practices when faced with an employee complaint of sexual harassment. Employers should consider these three areas:
- Does the employer have a clear written policy on sexual harassment? Each employer should have a written employee handbook or policy that instructs employees on what steps they should take if an incident of sexual harassment is observed or is the basis of a complaint. If an employee believes she (or he) is the victim of sexual harassment, what should the employee do? If the employee files a complaint, who should the employee file such a complaint with—his or her supervisor, the Human Resources director, or some other person? The existence of a strong anti-sexual harassment policy enables the employer to avoid liability if the wrongdoer is not a supervisor and the victim has failed to avail himself or herself of the complaint procedures instituted by the company.
- How will the Employer respond to a sexual harassment complaint? Encouraging or even requiring a victim or observer to report an incident of sexual harassment is only the first step. Just as important is ensuring that the employer’s response is set forth in the written policy and then implemented. The employer should make it clear that the policy is based on zero tolerance. It also should advise employees that all complaints will be investigated and that a finding by the employer of misconduct based on sexual harassment will lead to discipline, up to and including termination. All employees regardless of rank should be treated uniformly. If necessary, outside counsel should be retained to head an investigation when the subject of the complaint is a member of senior management, an officer or a director.
- Once the employer has an effective policy, how can the employer ensure that the policy is enforced in every case? Simply having a strong written anti-harassment policy is insufficient. Each employer must take pains to follow and enforce such a policy. This means that the employer should review its written policy periodically to make sure it is up to date. An employer also should require its employees, regardless of rank, to attend onsite anti-harassment training seminars. Each new employee should have to sign a written acknowledgement that he or she has read and will adhere to the company’s anti-sexual harassment policy.
The days of laxity in the issuance and enforcement of a policy to prevent sexual harassment in the workplace are over. I have advised employers on these matters for more than 30 years. If you have questions, call me.
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