Over the past two decades, great strides have been made against sexual harassment in the workplace. However, one in four women still report they have experienced some form of workplace harassment, and that number skyrockets to 70%, or more, in certain industries (such as food-service and hospitality). Lawroom.com released its Litigation Scorecard for 2014, and sexual harassment tops the list with 7 out of 10 employees winning their harassment lawsuits against their employers. The average win? $200,000!
So what can employers do to minimize inappropriate activities in their workplace and to reduce their risks of facing a harassment lawsuit?
Employer Expectations
In 1986, in Meritor Savings Bank v. Vinson, the United States Supreme Court first recognized sexual harassment as a violation of Title VII of the Civil Rights Act of 1964. Over the next 15 years, several landmark Supreme Court rulings further clarified the expectations of employers to educate and train their staff to remedy inappropriate harassment in the workplace.
The Equal Employment Opportunity Commission, or EEOC, is the federal agency that investigates claims of discrimination and harassment. It has explicitly stated that employers are expected to train workers, and document this training.
With respect to sexual harassment, the EEOC Guidelines state, “Prevention is the best tool to eliminate sexual harassment in the workplace from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.”
The EEOC takes this one step further by stating employers are expected to have a clearly defined complaint/grievance process, accompanied by an immediate and appropriate response.
Anti-Harassment Training Best-Practices
While many states have mandatory sexual harassment training (such as California, Maine, New Jersey and Connecticut), there is currently no federal law mandating training. However, below are 3 best-practices to avoid a sexual harassment lawsuit:
1. Managers and employers cannot take a passive approach to education. Many companies have policies and simply hand them out at new-hire orientation. They don’t take the time to explain the policy or the avenues available to an individual if they wish to make a complaint. Additionally, managers are woefully unaware of their actual duties and responsibilities relative to accepting and responding to complaints. Simply telling an employee about a policy is not enough. Management must become pro-active in educating all employees and reinforcing an open-door policy.
2. One of the greatest vulnerabilities of management is failing to take complaints seriously and not responding in a timely fashion. Management must respond immediately to all inappropriate behavior in the workplace. They need to conduct a thorough and prompt investigation of ALL complaints, and appropriate action should then be taken.
If a manager is not adequately trained to conduct a legitimate investigation, they should take all complaints to Human Resources or a single designated Ethics Officer as soon as possible for the most effective and consistent resolution.
3. Employers may not be liable for punitive damages if they make “good faith efforts” to comply with anti-discrimination law. In other words, although employers may be liable for compensatory and economic damages, if it can be shown that a supervisor or manager acted against company policies, it is very possible that the employer will avoid punitive damages. These overall efforts include having a policy, training and immediate response. Documenting these policies and training sessions will further protect the employer in a lawsuit.
While sexual harassment is unfortunately still far too common in the workplace, employers can take a few simple, proactive steps to significantly reduce the chance of a lawsuit and improve their overall workplace environment.