Protecting Against Workplace Harassment

A study conducted by CNBC revealed that 1 in 5 American adults have experienced some form of sexual harassment at work. That’s a pretty substantial figure, which underscores the reality that workplace harassment is something to which no business is immune.

Fortunately, most companies seem to grasp the gravity of the issue, as 87% of those surveyed said their company takes sexual harassment seriously.

“I think employers today are much more aware and much more sensitized to the importance of the issue,” says Mike Shadiack, labor and employment chair at Connell Foley. “When you see some of the settlements (in the millions of dollars), I think employers are awakened by those numbers and realize that they need to be more proactive to create the proper culture and working environment to both make sure their employees are safe and to protect [themselves] from any potential exposure.”

However, even if a business owner understands that harassment needs to be taken seriously, if they don’t take the necessary steps, they could still be at risk of a lawsuit.

“Knowledge is power,” says Tracy Armstrong, co-chair, employment law team, shareholder, at Wilentz, Goldman & Spitzer, P.A. “Nowhere does it say you must prevent all discrimination and harassment in the workplace. Why? Because we are human. That would be an impossible task. What the law says is: do your best.”

Shadiack and Armstrong agree that the best way for employers to protect themselves from a harassment claim is threefold: have a written anti-harassment policy, have a clear complaint procedure, and do anti-harassment training.

“There is case law out there that says if you do those three things as an employer, and the employee does not take advantage of your internal mechanism, there is potentially an affirmative defense that is available to the employer if there is a claim of harassment filed in court,” Shadiack says.

Armstrong adds that the key is for employers to know what their obligations are, and if they do, they can set themselves up in such a way that they are protected should an incident occur.

Have a Written Policy and Complaint Procedure

“Every employer needs to have a written anti-harassment policy,” says Shadiack. “That policy will not only protect the employees, but also protect the employer.”

Shadiack says a policy can be written by a company’s employment attorney, or if it is written by an HR professional, it can be sent to employment counsel for review and updated if need be. The policy should also be updated at least every two years to keep up with changes in the law.

One thing that employers must remember is whoever writes the policy, it has to be tailored specifically to their own company. This includes their business practices, the number of employees they have, their industry, and the states they operate in, for example.

In terms of content, the policy should outline what the protected classes are under federal and state law.

It should define what harassment is generally, and needs a section that specifically addresses sexual harassment, and gives specific examples of prohibited conduct.

“Just having a policy that prohibits certain conduct is step one. But what if the employee has a concern? How do they report it? Who do they report it to? What will the company do with that information? That is where the complaint procedure comes in,” explains Shadiack.

He says the complaint procedure should be part of the anti-harassment policy, should be easy to understand, and should set forth specific steps to walk the employee through exactly what to do and what to expect.

“If you get a complaint, per the law, you have to conduct an immediate and thorough investigation,” says Armstrong. “You may conduct that investigation and find that there isn’t a violation, and that’s okay.”

If it is concluded that a violation has occurred, the employer should take appropriate remedial action. Armstrong also notes that employers should never punish someone for coming forward with a complaint.

While not required, Shadiack says that a best practice he recommends is to have a complaint form available.

“The form would set forth specific questions for the employee to complete so that the answers will give the employer the information they need to conduct a thorough investigation,” he says. “It allows the employee to present their story.”

Armstrong also strongly suggests that employers ensure they have employment practices liability insurance (also known as EPL insurance or EPLI coverage), which provides coverage to employers against claims made by employees alleging: discrimination, wrongful termination, harassment, and other employment-related issues.

“You want significant coverage because these cases are expensive,” she adds.

Conduct Workplace Anti-Harassment Training

Shadiack says that he has seen an uptick in the request for training over the past few years.

“I often hear back from my employer clients after the training is conducted that employees make comments to them that they appreciate the training and information, and that the employer brought everyone together to inform them of their rights and responsibilities,” he says.

Many employees are uninformed or misinformed about what their legal rights are and what their legal responsibilities are, and training helps to solve this.

For example, Shadiack says that a lot of employees are surprised to learn that their protection rights extend beyond coworker interaction to anyone that they interact with while conducting their work duties, such a customer, vendor, or third party repair person.

“I cannot emphasize enough how important training is,” says Armstrong, who adds that effective training also informs employees about what they shouldn’t be doing.

For example, she points out that the intent behind a joke or action doesn’t matter. If an employee feels violated and comes forward, you must conduct an investigation and follow the steps in your policy.

“The law doesn’t care if you were joking,” she says.

“You want training that is practical to that particular employee, not some canned training that is rolled out to every employer,” says Shadiack. “You want to make sure when the employees leave that day that they not only have an understanding of their rights and responsibilities, but also an understanding of their own company’s policy and complaint procedure.”

Shadiack and Armstrong agree that a live training session is much more effective than a virtual one. However, having a recorded version of the training is good practice, as it can be used when onboarding new employees to inform them of your policies and procedures.

Conclusion

Overall, it is important to be proactive as an employer when it comes to harassment and discrimination prevention.

“Find a trusted partner that you can ask questions to, such as an employment law attorney. You don’t have to speak to them everyday, but it is worth its weight in gold,” Armstrong says.

Additionally, you want your employees to know that the topic matters to you as supervisor. Bring up the policy at normal staff meetings and ask employees if they have any questions about it.

“Create that record that you are a supervisor in a company that takes this seriously and cares,” Shadiack says.