Facing the Wave of Recent Sexual Harassment Complaints – Proactive Steps for Employers to Mitigate Risk
Allegations of workplace harassment result in employers defending thousands of claims per year. In 2016 the U.S. Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing major federal anti-discrimination laws, received 28,216 harassment complaints. Given the prevalence and notoriety of harassment claims that have been covered in the media recently, it is likely that the EEOC will receive an even larger number of complaints in 2017.
Workplace harassment is a form of unlawful discrimination prohibited at the local, state, and federal level. Specifically, unlawful harassment occurs when the conduct is due to an employee’s status as a member of a protected group – such as a person’s gender or race. “Sexual harassment” is in actuality a common form of sex or gender discrimination.
Employers may be liable for a supervisor’s or co-workers’ sexual harassment of an employee in the workplace. Furthermore, workplace harassment can occur outside the office, such as at social events and over social media or other technological mediums, making it sometimes difficult to detect and address. Employers should be aware that a single workplace harassment claim can result in significant liability.
As such, it is important for employers to take steps now to proactively prevent and address any workplace harassment before the conduct results in costly legal proceedings – to say nothing of the other non-legal repercussions, such as loss of productivity, negative publicity, poor morale, and high turnover.
As an initial matter, employers should provide employees with an equal employment opportunity (EEO) policy (including anti-harassment provisions) at the outset of their employment and ask for a signed acknowledgement of receipt from the employees. The EEO policy should contain, among other things, examples of impermissible behavior and a clear procedure encouraging employees to share harassment concerns without fear of retaliation.
In addition to implementing and maintaining written anti-harassment and anti-retaliation policies, employers who receive harassment complaints or otherwise learn of improper conduct must take prompt and concrete actions to implement their policies and to actively prevent and eliminate harassment from occurring in their workplaces. An employer who has notice of a hostile work environment or other forms of sexual harassment has a duty to take steps to eliminate the offending underlying conduct. Conducting a thorough investigation and disciplining employees for bad behavior is at the core of this process.
Finally, we advise clients to conduct sensitivity training with their supervisors and staff to help alert their employees to these issues, as well as to ensure that all of their workers are aware of the company’s EEO policies.
Based on the increasing prevalence and attention being paid to this type of conduct in the media, we advise clients to review their written anti-discrimination, anti-harassment and anti-retaliation policies and procedures at this time.
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