Inland key takeaways

Core Principles in Establishing a Harassment-Free Workplace

Presented by Camille Olson, Partner, Seyfarth Shaw LLP

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Camille Olson
Camille Olson

A timely topic. There were over 100 news reports of sexual harassment allegations involving celebrities, public figures, politicians, senior corporate executives—and prominent media figures, including Charlie Rose of CBS News, Glenn Thrush of The New York Times and Mark Halperin of ABC News.

But it’s not all about celebrities. Workplace harassment affects all kinds of workplaces, as shown by a strawberry picker on the cover of Time magazine’s “The Silence Breakers” story.

EEOC Acting Chair Victoria Lipnic said it back in October: “This happens to women in workplaces all over the place. It’s food processing plants, a correctional facility, a car dealership, restaurants, agriculture. It’s across all industries.”

Silence is…rotten.Half of women say they’ve been harassed in their workplace, but 90% did not report the incidents.

There oughta be a law. There is. Sexual harassment offenses come from the Civil Rights Act of 1964, banning unwelcome sexual advances, demands for sexual favors, and other verbal or physical conduct of a sexual nature.

For the defense. There are two principal defenses against claims of harassment: That the employer has a process to prevent or promptly correct harassment, and that the employee “unreasonably” did not take advantage of those processes.

When is late too late? The statutes of limitation for filing a federal complaint is generally 300 days from the incident of harassment, or in the case of allegations of ongoing harassment, from the last incident. Your state may have different limits for action under state law.

Five core principals to prevent harassment:

Committed and engaged leadership.

What is the visible commitment from top leadership? Is there adequate funding for the complaint procedures? Conduct surveys on corporate culture and climate.

Comprehensive and effective anti-harassment policies. Should be clear it applies to employees at every level, and clients. Include a description of the complaint process, with multiple ways to report harassment. Policies should spell out exactly what constitutes harassment—with examples. There must be a commitment to take prompt action on complaints. Assurance there will be no reprisals for complaints, which will be kept confidential. Some employers require employees in consensual romantic relationships to put that in writing.

Effective reporting channels and responses. Be sure there are multiple ways to report—not just to direct supervisor. Important that individuals responsible for responding to complaints must have protocols to follow for the investigation.

Side note: What about allegations of harassment at another workplace? There have been lawsuits for negligent hiring and/or negligent retention.

Consistent and demonstrated accountability. There are no “superstar” exemptions who are above the harassment rules. Federal government has been very clear about that.

Providing training for employees. Non-harassment training should be done repeatedly, not simply a one-and-done training session. Training should be interactive, getting the employees talking to each other. Live training better than something on the internet. Some employers are providing “bystander” training so employees can recognize problematic behavior and can intervene, sometimes with “scripts” for responses. One trend: Employers are sharing information about the number of complaints and resolutions in harassment allegations. It may become law.

First responders. “An employer’s actions in response to complaints sends powerful signals about culture and tolerance of harassment,” Camille Olson said. Employers must promptly investigate charges, keep detailed documentation of the investigation, and maintain confidentiality of the employee through the process.

You asked: Are there any boilerplate anti-harassment policies to be used as a starting point for our policy? Because state laws vary, there might not be an appropriate policy, but going to eeoc.gov/work should give you a framework. The EEOC also last year released a document called “Promising Practices for Preventing Harassment.”

A taxing issue. Under the new tax law, cash settlements of harassment complaints are no longer deductible.

The biggest mistake lawyers see managers doing: Agreeing right away with an employee’s complaint, and say the alleged offender should be fired. The manager hasn’t heard the other side. Best practice: Tell employee she/he was right to bring the issue up, and she/he can return to work with no consequences.

Want to follow up with Camille Olson? Email her at colson@seyfarth.com .