New Light on an Old Problem – Sexual Harassment!

It is all over the news and it is certainly high profile.  From Hollywood to the morning news to the halls of Congress, powerful men (and yes I said men, because so far, that is who it has been but yes I also know women can be harassers) are being brought down by allegations of sexual harassment. There has been story after story after story in the news.  On top of that, in this digital age we have the #MeToo movement and Time magazine has even named “The Silence Breakers” as the person of the year.

We could spend a lot of time talking about these headlines and the shocking behavior alleged and in some cases admitted to by these people. But I’m an employment lawyer, so I am going to stick to the law and not the headlines.  What I’m not going to do is spend any time in this particular post going through the legal definition of harassment.

Here is what I do want to do.  I want to remind you of your obligations when you learn that harassment may be occurring in your workplace.  And we are going to go to the EEOC for some help on deciding what we should be doing about this.

The very first step to making sure that you don’t have harassment in your workplace is having a culture that does not tolerate this kind of behavior.  Having a policy and doing training is not going to do you one bit of good if you don’t live the policy.  This has to come from the top.  And the top has to be committed.  You’ve all seen the billboards, “Your kids learn by watching you.”  Your employees do too, and if you say one thing and do another you are sending mixed messages.

So, where do we start?  According to the EEOC’s Guidance we start with prevention:

An effective preventive program should include an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented. The employer should affirmatively raise the subject with all supervisory and non-supervisory employees, express strong disapproval, and explain the sanctions for harassment. The employer should also have a procedure for resolving sexual harassment complaints. The procedure should be designed to ‘encourage victims of harassment to come forward’ and should not require a victim to complain first to the offending supervisor. See Vinson, 106 S. Ct. at 2408. It should ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation.


Now take a look at that.  First, have a policy.  Then tell people about it.  Raise the subject of harassment with your employees, all of your employees, and inform employees of their right to and how to raise the issue of harassment.  Tell people you don’t tolerate harassment and that they can report it.  And do it over and over again.  I know what you are saying, “If we raise the issue we are going to get a line of people at my door wanting to talk about this stuff.”  That’s right, you are.  And you should welcome that.  At best, it is an opportunity to find and get rid of potential liability.  At the least, it is a chance to educate all of your employees.

OK, Steve, I’m doing all that. I have a great policy, I am training, I am raising the issue, and I still got a complaint.  Now what do I do?

Well, if you look at the news without any critical analysis it would seem that you just go fire the accused, right?  WRONG!  A couple thing here:  first, by the time a big story hits the headlines you can bet a lot of investigating has been done.  You don’t fire a multi-million dollar a year employee without having done some looking into the allegations against him or her.  And what about Congress you say?  Well that is different and we are focusing on the workplace remember?  So let’s go back to the EEOC for some help on what we do once we have reason to believe we have an issue:

When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly. The employer should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring. Disciplinary action against the offending supervisor or employee, ranging from reprimand to discharge, may be necessary. Generally, the corrective action should reflect the severity of the conduct. See Waltman v. International Paper Co., 875 F.2d at 479 (appropriateness of remedial action will depend on the severity and persistence of the harassment and the effectiveness of any initial remedial steps). Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309-10, 44 EPD ¶ 37,557 (5th Cir. 1987) (the employer’s remedy may be ‘assessed proportionately to the seriousness of the offense’). The employer should make follow-up inquiries to ensure the harassment has not resumed and the victim has not suffered retaliation.


Let’s break down what the EEOC is saying here. The key is INVESTIGATE.  First thing to remember is you don’t have to have an actual complaint to have an obligation to investigate.  If you receive a complaint or “otherwise learn” of alleged harassment. Investigate.  Anonymous complaint?  Investigate.  Think there is something going on?  Investigate.  Get an actual complaint?  Investigate.  And that means investigate, it does not mean just fire the accused.  Again, that is the key:  INVESTIGATE.

Once the investigation is done, if you determine harassment occurred, you take prompt appropriate remedial action to see that the harassment stops.

And what good does all this do you?

When an employer asserts it has taken remedial action, the Commission will investigate to determine whether the action was appropriate and, more important, effective. The EEOC investigator should, of course, conduct an independent investigation of the harassment claim, and the Commission will reach its own conclusion as to whether the law has been violated. If the Commission finds that the harassment has been eliminated, all victims made whole, and preventive measures instituted, the Commission normally will administratively close the charge because of the employer’s prompt remedial action.


And that is the moral of the story.  If you have the right culture, if you put the preventive measures in place, and if you investigate and take prompt appropriate remedial action when you have an issue, you can avoid liability.

Oh, and people might actually want to work for you too.

If you are a business and you need a policy or training or any other help with this, drop me a line.