WORKPLACE LAW LOWDOWN | Sex Harassment News Should Spark Employer Action

By: Donald H. Scharg

11/21/17

In May, we wrote about Bill O’Reilly’s separation from Fox News because of sex harassment allegations against him. 

At that time, no one expected the current avalanche of sex harassment claims, sometimes decades old, starting with movie producer Harvey Weinstein, upending the entertainment and news world, and now ensnarling the Senate candidate from Alabama as well as a sitting Senator.  Although workplace harassment law does not deal with decades old claims (the statutes of limitations typically range from six months to three years), it is important to review the lessons for all employers.

An employer’s first line of defense against harassment claims is a well-publicized and uniformly enforced policy against harassment with an effective complaint-mechanism, encouraging reporting. The policy should provide a reporting mechanism to Human Resources and various company officials so that the complaining employee is not required to report the harassment to the alleged harasser if that individual is the employee’s supervisor. An effective policy will help reduce the potential for employer liability.

Even with the best harassment policy, employers cannot make any guarantee against the presence of inappropriate conduct in the workplace and employers are not expected to make that guarantee.  However, employers are expected to respond quickly and take appropriate action after an adequate investigation.  An appropriate response is a prompt remedial action designed to prevent the reoccurrence of the inappropriate conduct.  Action less than termination of the employee may be appropriate depending on the circumstances.  If the employer conducts an adequate investigation and takes prompt action to try to prevent reoccurrence, it should avoid liability for sex harassment.

There are, however, several exceptions. First, the employer is automatically liable where a supervisor has taken a tangible job action (e.g., termination, demotion, transfer) against an employee in a harassment situation. Second, some courts have held that an employer may be liable for a single incident of severe misconduct.

Many companies have “star” performers who are protected and coddled. But “star” status does not insulate anyone from harassment claims.  Nor does customer status provide protection. Sexual harassment pertains to everyone from the president of the company to the custodian, to vendors and customers. Employees can claim harassment by your best customer and as the employer, you must take appropriate action.

The real protection against harassment claims starts with a proactive corporate culture. Company management must notify employees, by word and deed, that harassment is not tolerated.

Employers should provide periodic training about harassment – what it is, how to report it – which also helps to ensure that the policy is utilized when allegations of improper conduct arise. Many employers provide additional training to supervisors – how to prevent, identify, stop, report, and correct harassment. 

Employers must remember:

1. Sex harassment still exists
2. No one is immune from a claim
3. Sex harassment claims are costly to your company finances and your reputation
4. Provide training against workplace harassment
5. Publicize your harassment policy and enforce it
6. Take prompt investigatory action when a complaint is received
7. Take corrective action if inappropriate conduct is confirmed

Sex harassment continues to be an issue in workplaces.  We must all learn from the recent events that employers must be vigilant in protecting the workplace. In addition, everything written about sex harassment applies equally to harassment claimed on the basis of race, color, religion, national origin, age, disability, genetic information, and other legally protected status.                     

We routinely work with employers on drafting harassment policies, providing training, investigating complaints and responding to harassment allegations. If you need assistance, call a member of Bodman’s Workplace Law Practice Group.