The proliferation of high-profile sexual harassment and sexual assault claims in recent months has been staggering, and it is a safe bet that such claims will greatly increase in number in the New Year. To be sure, victims of such harassment have found courage in the wake of the changing political climate, particularly in light of the number of serial offenders who have been unceremoniously removed from extremely lucrative positions. The balance of power and fear of the power that has been wielded for years by perpetrators of unwanted advances and, at times, sexual assaults, has shifted in favor of those who have for too long been victimized in employment settings.
For employers who have knowingly elevated public image and/or pursuit of profit over protection of their employees, and who have displayed a callous disregard or willful ignorance for what was often well-known in the workplace, it would appear the day of reckoning is coming. In fact, the Equal Employment Opportunity Commission (EEOC) recently launched an online system that permits employees nationwide to inquire about potential discrimination and/or sexual harassment claims and to electronically sign and file complaints against their employers and/or supervisors and managers.
The import of the EEOC’s online tool for filing claims cannot be overstated. Simply put, an aggrieved employee may now log on to the EEOC’s website in the privacy of his or her home and initiate a complaint of discrimination or harassment. The employee will be able to create a unique username and password for their continued interaction with the EEOC and continued monitoring of the progress of their claim. What this means in practical terms for employers is that there will undoubtedly be an uptick in the number of claims filed with the EEOC in 2018.
For those employers who have not countenanced sexually offensive behavior on the part of their executives, supervisor or managers, yet are concerned about maintaining a workplace that safeguards its employees and its own reputation against such behavior, training is essential. It is not enough to simply promulgate a policy that addresses prevention of sexual harassment in the workplace, nor is it particularly effective to have employees mindlessly scroll through an online training module addressing sexual harassment prevention.
Instead, employers are well advised to prioritize in-person training aimed at ensuring that supervisors and managers know well what constitutes or could constitute sexual harassment under the law, how to address such behavior to ensure it is eradicated from the workplace, what resources are available to assist them when confronting an internal complaint of harassment, and how to avoid an internal complaint mushrooming into a complaint of retaliation.
The most effective training typically provides a healthy dose of the reality of individual liability that a supervisor or manager may face both as a perpetrator of harassment or as someone who simply ignores inappropriate behavior in the workplace. Simply put, training that makes clear to supervisory personnel that it is in their self-interest, both financially and from a reputational standpoint, to act immediately when either observing inappropriate behavior or when becoming aware of an employee’s concern of discriminatory or harassing behavior, is a necessary first step to improving a workplace culture that is at risk for “me too” claims.
Ultimately, training properly done will prove effective in uncovering and successfully remediating employee concerns well prior to the employer having to face a formal charge of discrimination or harassment. In so doing, the cost of training will more than pay for itself when compared to legal fees that may be incurred if the employer is forced to defend itself against claims of sexual harassment and/or discrimination.
What should an employer do, however, if the alleged perpetrator is the president or Chief Executive Officer of the company? In such a situation, is it realistic to expect the Human Resources representative or Sexual Harassment Grievance Officer to take action that could prove detrimental to the highest-ranking executive? The answer is relatively simple – the matter should be elevated to the Board of Directors to undertake an investigation and take action, as necessary, to protect the company.
Although simple to state, it is not as simple to act upon, unless the board has made clear its views throughout the company – and, in particular, to the senior Human Resources representative – that sexual harassment and discriminatory behavior will not be tolerated and that the board expects to be informed immediately of any concerns that relate to senior executives in that regard.
Once informed of a concern of this nature, it is imperative that the board act swiftly to ensure a thorough investigation is conducted and to safeguard individuals who bring forward good-faith complaints, as well as those involved in the investigation, from retaliation of any kind. Ultimately, the board’s actions will speak much more clearly than its mere statement of zero tolerance. If a board fails to act or is seen as attempting to cover up allegations of sexual harassment, the company will be placed at greater risk of liability, and a culture will be fostered whereby individual employees will refuse to bring forward their concerns while the concerns are still manageable. Instead, such employees will believe they have no alternative but to file a formal complaint of sexual harassment or discrimination with the EEOC or the state agency tasked with handling such complaints. As noted above, the filing of these complaints has become much easier in light of the EEOC’s online filing tool.
History will likely show that the 2017 Hollywood and media-based sexual harassment scandals not only resulted in an enormous increase in “me too” claims within the workplace, but hopefully will also result in widespread workplace culture improvements designed to root out such offensive behavior before countless other employees are victimized. Whether such improvements in workplace culture will have lasting value is dependent on actions of the Board, company executives, and each company’s training priorities.
Originally published on BenefitsPro. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
