This week, with a story from the restaurant industry in mind, we’re going back to some basic employment law principles.
Workplace sexual harassment has been a problem as long as there have been workplaces. It has been recognized as a form of unlawful sex discrimination for decades. We and our fellow employment lawyers have been providing training on the subject for decades, too, but sexual harassment in the workplace still occurs, and it keeps costing employers money, for legal fees and settlements and judgments.
We were depressed, but not surprised, to read a report in The Guardian this week saying that four out of five servers experience sexual harassment. We were concerned (and a little surprised) to read, in the same report, that in the restaurant industry, management’s response to server sexual harassment is “Deal with it.” In fact, according to the article, some female servers are encouraged to dress provocatively to increase their tips.
Sexual harassment of employees by customers and other third parties is, of course, only one possible source of employer liability. Most workplace harassment occurs between employees. When and how an employer can be held legally responsible for sexual harassment depends on lots of factors, but there are some basic preventive measures that make sense for every employer.
1. Implement a policy that prohibits sexual harassment. Many trade groups (and of course attorneys) have sexual harassment policies that can be tailored to a particular workplace. A good sexual harassment policy is first line of defense to a claim.
2. Explain what sexual harassment is and isn’t. In your policy or through training, employers need to let employees know what it is that is being prohibited. Sexual harassment isn’t the same thing as sex discrimination, although it’s a form of sex discrimination. It isn’t the same as sexual assault, although it can, if it’s serious enough, rise to the level of sexual assault. It can take the form of physical contact or spoken words or pictures or written material. It doesn’t have to be intended to harm. It has to be “severe and pervasive.” It can occur between a supervisor and a subordinate or between peers. It has to be unwelcome or uninvited. Whether or not conduct or communication is legally actionable sexual harassment depends on lots of factors. A lot of problems occur because what seems like a good, funny joke or an off-hand comment to one person may be deeply offensive to another person. Your employees will benefit from training that uses lots of examples, and invites lots of questions.
3. Make it easy to report. Effective policy and practice makes it easy to report suspected sexual harassment, whether the report is from someone who has observed it or someone who has experienced it. Employees need to have choices about how or to whom a report can be made. You may have a complaint line, or several HR people who can receive complaints, or you may encourage workers to report concerns to a supervisor or manager they feel comfortable with – or all three. The goal is to encourage and welcome reports, not discourage them.
4. Investigate each report. The law is clear about this. Employers are required to take timely and appropriate responsive action when they know or should know that sexual harassment may have occurred. Don’t make the mistake of ignoring a report of sexual harassment because what’s being complained about seems trivial or was “just a joke.” Sometimes, something that was just a joke can cost a company hundreds of thousands of dollars. Your investigation needs to be as thorough as necessary to make a determination as to what happened.
5. Take appropriate action. If your investigation leads to a conclusion that inappropriate behavior has occurred, take whatever action you think is necessary to prevent further instances of sexual harassment. Appropriate action could include discipline for the harasser – anything from a warning to termination – as well as remedial training for the harasser or the entire workforce. Remember that a swift response to a complaint or report of harassment can prevent liability.
6. Don’t retaliate – thank the complaining employee. Retaliation claims are on the rise, and are sometimes easier to prove than an underlying harassment claim. Employers need to be mindful of how an employee is treated after complaining of harassment. If an employer takes any action to punish the complaining employee or discourage others from speaking up, liability can follow, regardless of whether the harassment complaint itself has merit. Unless you are certain that a report is made in bad faith, your response should be to thank the complaining employee for coming forward and then undertake an impartial investigation.
7. Conduct regular training. Whether it is required by law – like in California – or viewed as a risk management strategy, employees – and in particular, supervisors – need to be reminded of their obligations to control their own behavior and to report and address harassment in the workplace. Training doesn’t have to be in person (although that might be best to facilitate questions); the marketplace is full of e-learning and on-demand options.
8. Seek expert help if needed. If you’re unsure about whether or not particular conduct or communication could be sexual harassment, or uncertain about how to deal with a complaint, don’t try to go it alone. Reach out to your in-house or outside legal counsel before the situation results in a charge of discrimination or a lawsuit. Counsel will be happy to help create a sexual harassment policy, develop an investigation game plan, or advise about an appropriate response to a complaint. We can always help you defend a charge or lawsuit, but most of us would rather you didn’t have to.