#MeToo: What Employers Should Know to Prevent Liability

Although sexual harassment in the workplace is not a new development, studies have long shown that sexual harassment, particularly in the workplace, tends to go unreported. The recent development of the #MeToo movement has resulted in many women coming forward with their claims of sexual harassment, putting a seeming end to the underreported nature of sexual harassment. In fact, Time Magazine recently deemed the “Silence Breakers,” whose stories initiated the #MeToo movement, to be the person or group to influence the news most in 2017.

Notably, many women who have recently come forward with stories of workplace harassment report that they informed their employers about harassment, but that their employers failed to take any action. Such action usually includes a proper investigation or, at minimum, making a record of the allegations. In light of the current climate, employers should take time to review their non- harassment policies and the enforcement of those policies to help protect their employees and to safeguard against potential liability.

Title VII prohibits discrimination or harassment in the workplace based on an individual’s status in a protected class, which includes gender. Accordingly, sexual harassment is strictly prohibited under Title VII and an employee who can prove he or she was the victim of such harassment may recover from his or her employer compensatory damages, including back pay, front pay, pain and suffering, and even punitive damages.

Sexual harassment can be classified in two ways: quid pro quo harassment and hostile work environment harassment. Quid pro quo harassment occurs when a person in a position of authority, such as a manager, supervisor, or company owner, demands sexual favors in exchange for an employee’s continued employment or advancement. Hostile work environment harassment occurs when an employee is subjected to a pattern of severe or pervasive unwanted conduct that creates a distressing and uncomfortable environment for the victim (evaluated by the “reasonable person” standard; i.e., whether a reasonable person would feel distressed and uncomfortable in the same or similar circumstances).

To protect against potential liability for sexual harassment, employers should have in place clear and effective written policies prohibiting discrimination and harassment. Though a non-discrimination policy would likely encompass sexual harassment, a separate sexual harassment policy is advisable. This policy should be made available to employees at the time of hiring, be included in a company handbook, and copies should be easily accessible to employees at all times. Further, employers should strictly adhere to these policies in all circumstances. Failure to abide by policies could open an employer up to liability. Below are a few tips to keep in mind when drafting non-discrimination and non-harassment policies and procedures:

Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.


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