Until It Happens To You: Preventing and Handling Sexual Harassment Claims

November 21, 2017

By Matthew E. Feinberg

For the last several weeks, media outlets have reported on sexual harassment almost constantly. Indeed, the media makes it seem like sexual harassment claims are levied against a new public figure each day. To put this intense dialogue about sexual harassment and sexual assault in perspective, however, one must consider that the media generally only focuses on allegations levied against the most famous and powerful individuals: Hollywood moguls; movie stars; and politicians. But, in reality, the problem persists at every level of the business spectrum, from the CEO of a multi-million dollar corporate enterprise to the part-time summer staff of a local small business. 
 
A recent ABC News-Washington Post poll revealed that 54% of female poll respondents reported being the subject of unwanted sexual comments or advances, and close to a third of those individuals reported being the victim of sexual harassment in the workplace. And, in each of the past seven government fiscal years (2010 through 2016) for which reporting has been completed, the U.S. Equal Employment Opportunity Commission (“EEOC”) has received over 6,500 claims, or “charges,” of sexual harassment each year, resulting in over $35 million in annual paid monetary benefits. Those figures represent only those complaints reported to the EEOC. The vast majority of sexual harassment complaints often go unreported or are reported to state or local enforcement agencies. 
 
Until a complaint is made, you may think your company policy is sufficient. Until it happens to you, you may think you and your employees are protected. Now, more than ever, it is important that large, medium, and small businesses alike prepare for the inevitable:  that sexual harassment will occur or will be alleged to have occurred in your workplace. Your response to the sexual harassment epidemic, both before and after a complaint is made, is paramount to your company’s success. 
 
Preventing sexual harassment before it occurs is critical to fostering a safe, respectful, and productive workspace and to avoiding a costly sexual harassment claim from impacting corporate morale and damaging a business’ bottom line. The following strategies, if implemented, can go a long way to accomplishing a harassment-free workplace.

Implement or Update Your Sexual Harassment Policy
 
Ensure that your company implements a comprehensive policy which explains that sexual harassment will not be tolerated, establishes an investigation procedure for handling complaints, and sets out potential disciplinary action for violations of the policy. Your sexual harassment policy should be broad and gender- and sexual orientation-neutral. Although the phenomenon receives far less attention, approximately one-sixth of sexual harassment charges filed with the EEOC each year are filed by men, and same-sex sexual harassment is receiving increased attention as a result of recent media reports. Your sexual harassment policy also should extend to harassment of your employees by customers, clients, vendors, and affiliates, an often overlooked source of unprofessional conduct.
 
Actually Enforce The Policy
 
Having a comprehensive sexual harassment policy will be effective only to the extent you enforce it. Take swift action in response to allegations or complaints of sexual harassment. Initiate an investigation right away, keep detailed documentation from the outset and throughout the investigation process, and keep the reporter advised along the way. Discipline appropriately any perpetrator of sexual harassment in compliance with your stated policy. It is important to remember that an employee’s complaint about sexual harassment is often based on that employee’s subjective perception of events. And, behavior that constitutes sexual harassment to one employee may not cause another employee any concern. It is critical, therefore, to take allegations and complaints of sexual harassment seriously and investigate and analyze them on a case-by-case basis from the perspective of the complainant.

Manage Your Managers and Train Your Trainers
 
Perhaps the most important aspect of implementing an effective sexual harassment policy is to ensure that management-level employees and the individuals who could be involved in the investigation process are properly supervised and trained in the company’s sexual harassment policies and investigative procedures. These managers and trainers are in the best position to identify unwanted behaviors among employees before they become full-blown sexual harassment complaints. Therefore, it is important that these individuals receive specialized sexual harassment training so that they can use the skills learned to best benefit the business.
 
Get Help
 
Whether your company is looking to craft a new sexual harassment policy or update an outdated one; is investigating a current sexual harassment allegation made by an employee or is concerned about patterns of behavior in the workplace; or is facing an EEOC charge or lawsuit related to an employee’s sexual harassment claim, seek experienced legal counsel promptly. The right attorney can help you foster a safe and productive workplace and limit your exposure to sexual harassment liability. The attorneys at PilieroMazza have substantial experience advising and representing companies on sexual harassment policies and issues, including EEOC charges and litigation, and they are available to assist you as you navigate the changing landscape as sexual harassment draws increased media scrutiny.

About the author: Matt Feinberg is an associate with PilieroMazza in the Litigation Group. He may be reached at mfeinberg@pilieromazza.com.
 
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