More than 75 women have accused movie mogul Harvey Weinstein of sexual abuse and harassment. As a result, Weinstein has been ousted from the movie and television studio he helped to found. More recently, numerous men have come forward with allegations of sexual misconduct against actor Kevin Spacey. Netflix responded by firing Spacey from his spot on House of Cards.
These unfolding Hollywood scandals have put workplace sexual harassment in the spotlight, underscoring the harsh reality that workplace sexual harassment has survived the Mad Men era. It is critical that employers understand what sexual harassment is and how they can endeavor to keep it out of their organizations. Besides costly legal consequences, sexual harassment can have a negative impact on employees’ physical and mental health, leaving the employer to deal with turnover, low productivity and morale, and reputational harm.
What is Sexual Harassment?
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion, and it applies to employers with 15 or more employees. Some state laws may provide additional protections for workers.
The Code of Federal Regulations provides that unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performances, or creates an intimidating, hostile, or offensive work environment. 29 C.F.R. §1604.11(a).
The Equal Employment Opportunity Commission (EEOC), the federal agency in charge of enforcing the country’s anti-discrimination laws, offers additional guidance on what constitutes sexual harassment. According to the EEOC, harassment does not have to be of a sexual nature and can include offensive remarks about a person’s sex. It is illegal, for instance, to harass a woman by making offensive comments about women in general.
Further, the EEOC reminds us that harassers and victims are not limited to men and women, respectively. Both victim and harasser can be either a woman or a man, and the victim and harasser can be of the same sex. Additionally, the harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a customer or supplier.
What Can Employers Do to Keep Employees Safe?
The EEOC says that prevention is the best tool to combat workplace sexual harassment. Here are three ways employers can help keep sexual harassment out of their organizations:
1. Implement an Anti-Harassment Policy
Every employer, large or small, should have an anti-sexual harassment policy in place and establish procedures for dealing with reports of sexual harassment.
Employees should know from the outset of their employment what their employer expects of them as far as their workplace interactions. An effective anti-harassment policy should provide a clear definition of sexual harassment, using examples of what kind of conduct is inappropriate and intolerable. Spell it out for employees in plain and simple terms. Remind them that sexual harassment goes beyond unwelcome or offensive physical contact and may include jokes, vulgar language, sexual innuendoes, pornographic pictures, and sexual gestures.
Your anti-harassment policy should outline procedures that employees can follow in reporting sexual harassment. Make it easy for victims of sexual harassment to come forward. Do not make them guess as to whether they experienced sexual harassment and how and to whom they should report their experience.
Your organization can be held liable if your employees engage in sexual harassment. Discuss your anti-harassment policy with all new employees and ensure that third-party suppliers, customers, and clients are also aware of your policy. An anti-harassment policy cannot be relied upon to prevent or address harassment unless it is openly publicized and discussed within your organization and with those with whom you regularly do business.
2. Enforce Your Anti-Harassment Policy
Anti-harassment policies are only effective if they are strictly enforced. Investigate all complaints and suspicions of sexual harassment immediately and take all reports seriously, no matter the title or rank of the victim or accused. Prevention of sexual harassment in the workplace starts at the top. If executives and upper-level managers do not take reports of sexual harassment seriously, victims of harassment will not come forward.
Keep accurate records of your investigation of reports of sexual harassment and the findings of the investigations. Make sure that these records are kept confidential. Appropriately discipline any employee found to have engaged in sexual harassment.
3. Check In With Employees
If the recent allegations against Weinstein and Spacey have taught us anything, it is that victims of sexual harassment do not always come forward immediately to report instances of harassment. Employees may wait some time before reporting sexual harassment and lodging sexual harassment charges. Because of this, employers should make a conscious effort to check in with their employees about their work environment. One way to do this is by conducting a so-called climate or culture survey. This is a questionnaire, usually anonymous, that solicits employees’ opinions on a variety of workplace issues. These surveys may help highlight problems within the organization by giving employees the opportunity to report their honest feelings about sexual harassment, among other issues.
Employers should take care to foster a culture where employees feel safe at work and empowered to report sexual harassment if it occurs. When employers treat allegations of workplace sexual harassment seriously, a more positive working environment will result.
The employment attorneys at Weston Hurd are available to provide your organization with additional guidance on how to keep sexual harassment out of your workplace and ensure that the reputation of your organization is protected.
This advisory was written by Weston Hurd Associate Attorney Monica L. Frantz. Monica litigates cases involving commercial disputes, employment law matters, product liability, workplace intentional tort, personal injury and wrongful death, premises liability, and construction claims and defects. Monica also advises employers on a broad range of employment law matters and insurance companies on coverage issues. Monica can be reached at 216.687.3261 or firstname.lastname@example.org.