The floodgate of sexual harassment allegations spawned by the #MeToo movement is evidence that employers are dropping the ball on fostering work environments free from inappropriate sexual behaviors. The good news is there are simple things an employer can do to prevent workplace harassment from occurring in the first place, and to potentially avoid liability should a suit be filed.
WHAT SHOULD EMPLOYERS DO TO PROTECT THEMSELVES? The courts have created a “safe harbor” defense in most instances for employers act reasonably to prevent and address incidents of workplace harassment. Employers may qualify for the defense if they undertake the following actions:
FIRST: Distribute an anti-harassment policy that defines sexual harassment, describes the complaint procedure for employees claiming violations, and assures that no employee will be retaliated against for airing a complaint.
SECOND: Conduct “periodic” anti-harassment/sensitivity training for management and staff. The frequency of training depends upon factors such as the size of the company, employee turnover rates, employees assuming new supervisory roles, and the number of harassment complaints. For most employers, we recommend training at least every other year, and the Equal Employment Opportunity Commission has recommended that the training be “live,” not online training.
THIRD: Take all complaints seriously (regardless of whether they are deemed credible), conduct a prompt, thorough and fair investigation into the allegations, and if a violation is found, take appropriate remedial measures aimed at ending the offensive conduct. Depending on the gravity of the offense, these measures include written warnings, suspension, demotion, transfer, termination or other punitive measures.
If the employer implements these measures and suit is nevertheless filed, the court should find that the employer acted reasonably to prevent harassment and thus is not liable in most cases. Conversely, if these elements are in place and the employee failed to invoke the internal complaint procedure before filing a legal action, the court may find that the employee failed to give the employer the chance to resolve the complaint internally and dismiss the complaint.
WHO SHOULD INVESTIGATE THE CLAIM? The key is designating a qualified investigator to investigate the claims. Employers are often tempted to delegate the task internally, and depending on the severity of the allegations that might be appropriate. However, there are many situations where the employer should seriously consider securing the services of an outside investigator.
For example, does the company have a staff member with experience and skill set to interview individuals and ask the right questions and follow-up questions; to know where to find direct and circumstantial evidence; to make credibility determinations; to make findings of fact that are supported by sufficient evidence; and to prepare an investigative report? If you are a small employer, chances are you don’t have a staff member with this specialized skill set.
Employers must also consider the optics of an internal investigator. Is a member of upper management the accused? Is the complainant or accused very good friends with the investigator? Such factors can call into question the objectivity of the internal investigator, prompting charges that “the fix was in” and the investigation was a sham. In contrast, an outside investigator typically does not know the players involved and comes to the table without preconceived notions about the parties. Moreover, because the outside investigator is not an employee of the company, they are better suited to make the hard calls with no fear of retribution should they find that members of upper management engaged in offensive conduct. Finally, hiring an outside investigator signals that management takes the complaint seriously.
Lindabury’s Employment group regularly provides its clients and their employees with anti-harassment, bullying and sensitivity training programs. When claims of workplace harassment are made, clients rely on Lindabury’s experience to quickly develop a plan to conduct an impartial, third-party internal investigation of the claim.
Kathleen Connelly, Esq., is a partner with Lindabury, McCormick, Estabrook & Cooper.