#MeToo: What Employers Should Know to Prevent Liability

Posted on by John M. Erbach in Employment Law

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:

  • Avoid Legal Definitions: Many employer policies simply quote the regulations regarding non-discrimination and non-harassment published by the Equal Employment Opportunity Commission (“EEOC”). Although such policies are accurate, they simply recite “legalese” and are not helpful to employees. While policies should accurately and properly reflect the EEOC’s regulations, employers should strive to use plain English when drafting their policies so that employees can understand them.
  • Focus on Prohibited Activities: For harassment to be unlawful under Title VII, activity or behavior must be severe or pervasive. However, employers should not wait until activity becomes pervasive or severe before taking action (because, of course, by that point there is already potential liability). Instead, employers should focus on preventing and remedying harassment before it rises to the level of unlawful behavior. Therefore, policies should include examples of behavior that is prohibited, even if not unlawful. Further, employers should make clear that these examples are not all-inclusive or exhaustive — they simply represent some of the behavior that will not be tolerated.
  • Do Not Focus on Sexually-Charged Comments or Actions Alone: Although the most obvious type of harassment includes quid pro quo harassment and hostile work environment, off-color, gender-based jokes or comments may also foster discrimination and lead to Title VII liability. Therefore, a comprehensive policy prohibits all gender-based harassment or discrimination.
  • Create an Open Door Policy: The policy should also make clear to employees that they are encouraged to report any and all instances of harassment. Design a complaint procedure that is easily accessible and effectively coordinates the reporting and review process. Consider a backup procedure available to employees when the complaint is against an individual to whom the employer would usually report claims of harassment.
  • Investigation: Promptly and thoroughly investigate all complaints and allegations of harassment and ensure employees that claims will be investigated. All employees responsible for receiving and investigating complaints should be properly trained and all investigations should remain confidential.
  • Remedies: Discharge or termination of the offending employee is not required in every case. The penalty for a substantiated complaint should be designed to address the specific behavior at issue on a case-by-case basis. Discharge may be appropriate in circumstances where the behavior is severe, but the policy itself should not state that all substantiated claims will result in termination—the policy itself should be general and state that disciplinary action will be rendered on a case-by-case basis, up to and including termination.
  • No Retaliation: Non-harassment and non-discrimination policies should contain a no-retaliation pledge that ensures employees who report harassment that they will not be subject to any disciplinary or retaliatory action because of their reporting. This should be strictly and uniformly enforced. Even when the investigation concludes that no action should be taken, the employee who spoke up is protected under the law from any retaliation.

About the Author

John M. Erbach represents a wide variety of business entities and individuals in complex business and commercial litigation, including employment disputes, defense of consumer protection claims, and intellectual property litigation.

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.