Thirty years ago, the U.S. Supreme Court recognized that a hostile work environment claim premised on acts of sex-based harassment was a prohibited form of sex discrimination actionable under Title VII of the Civil Rights Act of 1964 (“Title VII”). See Meritor Saving Bank, FSB v. Vinson, 477 U.S. 57 (1986). Despite the three-decade-old ruling, employers continue to struggle with enforcing their sexual harassment policies, specifically when allegations are lodged against high-ranking employees.
The prevalence of sexual harassment in the workplace has received heightened attention this year on the heels of the release of the EEOC’s June 2016 Task Force Study and a series of headlines accusing powerful figures (i.e., Roger Ailes, Donald Trump, Isiah Thomas, Bill Clinton) of systemic and unchecked sexual harassment in the workplace. In 2015, the EEOC reported that 6,822 charges alleging sexual harassment were filed with the agency, representing 17.1% of all charges filed. It is clear from the results of the EEOC’s Task Force Study that currently, harassment training and prevention measures have not gone far enough to thwart sexual harassment.
With sexual harassment suits carrying multimillion-dollar price tags, what can employers do to avoid the sting of litigation?
1. Develop Comprehensive EEO Policies
Sexual harassment can take many forms; accordingly, employers should have written policies that specifically define what constitutes unlawful sexual harassment. Title VII makes it unlawful to harass a person (job applicant or employee) because of that person’s sex. Sexual harassment may include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Sexual harassment may also include offensive remarks about a person’s sex. It is imperative that both employers and employees understand that federal anti-discrimination/harassment laws are not a code of civility—meaning not all rude, uncivil or disrespectful sex-based statements in the workplace constitute sexual harassment.
While employers are well within their right to adopt a more comprehensive policy against sexual harassment, the legal definition of unlawful sexual harassment does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.
For an EEOC policy to be effective, employers must ensure that all employees are fully aware of the policy and that the prohibited conduct is succinctly explained. Additionally, employers should fully outline their complaint process, identifying whom to make the complaint to and encouraging employees to make detailed complaints in writing.
2. Hold regular and effective training sessions
The EEOC’s Task Force Study found that the training currently offered by employers, which often focuses on avoiding legal liability for sexual harassment claims, is not going far enough to prevent sexual harassment in the workplace. Employers must focus on regular training that reinforces their EEO policies—just glossing over the EEO policy during new hire orientation is insufficient. Training should be conducted in regular intervals (more than once a year) so that employees are well aware that it is a high priority. Additionally, employers should not take a one-size-fits-all approach to developing anti-harassment training. For training to be effective, it should be tailored to the employer’s workforce (i.e., industry, employee demographics, location, etc.).
C-suite employees should not be exempted from attending and successfully completing anti-harassment training...
Recently, Buzzfeed reported that during a 2013 interview, Donald Trump Jr. offered the following advice to working women concerned about sexual harassment: “If you can’t handle some of the basic stuff that’s become a problem in the workforce today, then you don’t belong in the workforce…[y]ou should go maybe teach kindergarten [because] you can’t be negotiating billion-dollar deals if you can’t handle, like, you know.”
Donald Trump Jr. currently serves as the Executive Vice President of The Trump Organization. As a high-ranking employee and son of the company’s owner, statements like the above severely undermine the validity of the company’s anti-harassment policies. Specifically, such statements (if unchecked) can discourage employees from reporting sexual harassment out of fear of retaliation or out of the belief that such a report would be futile/not taken seriously.
Employers must get buy-in from the highest ranking employees. For example, C-suite employees should not be exempted from attending and successfully completing anti-harassment training. Additionally, top ranking employees can also be integral in the training—HR Departments can utilize top ranking employees to open training sessions or to otherwise communicate to attendees the seriousness of the training/anti-harassment policy at the company.
3. Consistently enforce anti-harassment policies
Employers must consistently enforce and closely follow the tenants of its anti-harassment policy. When employers fail to enforce or selectively enforce their anti-harassment policies, they open themselves up to liability. Sexual harassment allegations are often difficult to investigate/substantiate as witnesses are often limited and the evidence tends to be he said/she said.
In 2007, a federal district court in Manhattan awarded a former New York Knicks executive $11.6 million dollars in punitive damages after finding that she was improperly discharged for complaining about sex-based harassment (e.g., derogatory sex-based remarks) from then president of the New York Knicks’ basketball operations and coach, Isiah Thomas. Throughout the proceedings, Isiah Thomas adamantly denied engaging in any inappropriate or unlawful behavior. The lawsuit alleged that despite reports to management about the sexual harassment, little to nothing was done.
The above is a perfect example of how failure to enforce and/or effectively investigate allegations of sexual harassment can be a costly mistake for employers. Employers should take all allegations of harassment seriously and thoroughly and objectively investigate the same. Employers must conduct unbiased investigations, regardless of the position or stature of the accused harasser. Moreover, if an allegation of sexual harassment is substantiated (even against a high ranking employee), employers must take prompt corrective action, including but not limited to discipline (up to and including discharge), further training or other accommodations. Although internal investigations should be kept as confidential as possible, employers should also wrap up the investigation by meeting with the complaining employee to assure the employee that appropriate corrective action(s) have been taken and to encourage the employee to report any perceived acts of retaliation or further harassment.
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[Teleicia J.R. Dambreville is an associate in law firm Obermayer’s Labor Relations and Employment Law department.]
