Today’s headlines point to why it is critical to review and strengthen company harassment programs.
In the current climate of #MeToo and the Time’s Up movement, many employers are scrambling to answer a variety of questions relating to harassment in the workplace. Chief among these are what’s changed, and what changes do we need to make now?
The answer to the first question is that nothing has changed, at least in terms of the laws prohibiting discrimination, which include sexual harassment. Employers have long had an obligation to prevent and remedy all forms of unlawful harassment in their workplace. This means that when they are on notice about harassing conduct, they must take prompt, appropriate action that is reasonably calculated to ensure that the conduct stops and does not recur.
Typically, employers discharge this obligation by maintaining a workplace harassment-prevention program that includes:
- A comprehensive policy, inclusive of a multiple-contact reporting structure, which allows employees to raise concerns of harassment without fear of reprisal.
- Periodic anti-harassment training for employees.
- Procedures that provide for investigation and resolution of any complaints of harassment raised under the employer’s policy.
Sound familiar? It should. Preventive measures such as policy and training allow employers to raise an affirmative defense to claims of unlawful hostile work environment harassment. But in the #MeToo era, workplace harassment education and preventive measures must be more than perfunctory exercises designed to “check the box” on the company’s legal obligations.
What Should My Company Be Doing Now?
The continuing #MeToo/Time’s Up dialogue sends the clear message that even though the letter of the law has not changed, it is more important than ever that employers’ workplace harassment-prevention measures are working as they should. Policy and training remain vitally important. However, it is up to you to ensure that these measures are effective for your workforce.
Now is the time to review and assess your company’s anti-harassment policies. You should also evaluate the effectiveness of employee training on recognizing and reporting workplace harassment and of your company’s investigation procedures when internal concerns are raised. The key question is whether the components of your -workplace harassment-prevention program are both comprehensive and effective.
Your Discriminatory Harassment Policy
When evaluating an anti-harassment policy, consider the following questions:
- Is the policy compliant with the law? That is, does it cover harassment based on all protected characteristics under federal and applicable state and local law?
- Does the policy explain in an accessible way what types of conduct are prohibited? Does your policy provide employees with more than one contact, including someone who is not the employee’s immediate supervisor, for raising concerns of harassment?
- Does the policy explain the company’s commitment to investigating concerns and the prohibition against retaliation for raising concerns or participating in an investigation?
- Does your policy explain the consequences for violations?
If you answered “no” to any of these questions, consider revising your policy and asking your counsel to review it for both compliance and completeness.
Employee Education Measures
Next, look at your employee education measures, such as training. Gone are the days when simply having a policy tucked into your employee handbook was sufficient. Employers today must take proactive measures to educate employees on their policy and on conduct that is and is not acceptable in the workplace. This should include targeted training for supervisors and managers, who play a critical role in addressing harassment in the workplace. Managers who are not trained to recognize potential harassment concerns, or who fail to recognize them and address them appropriately, can subject their employer (and, under some state laws, themselves, individually) to liability.
It is also vital to evaluate whether your training and education measures are effective. If your company only does perfunctory online training, it’s time to explore additional training measures – particularly “live” in-person training, which provides an opportunity for interactive dialogue and working through scenarios. Training should do more than focus on legal standards and policy and reporting structures. Those things are still important, but training should also be tailored to include examples and content related to your company’s business, workforce and workplace. Educate employees not only on the conduct that is prohibited under your policy, but also on the ways that they can respond if they experience or observe potentially harassing conduct in the workplace. Training should also explain the company’s commitment to investigating concerns raised under the anti-harassment policy and to the general -procedures that apply to investigations.
Companies should ask if they are prepared to respond to an internal harassment complaint. Many employers have seen an increase in harassment complaints (largely internal) following the rise of #MeToo. This underscores the importance of ensuring that your company has internal investigation procedures in place to promptly address complaints if and when they are raised.
You should ensure that key personnel, such as Human Resources and managers, understand what constitutes notice of a harassment concern sufficient to trigger an investigation. Notice can take many forms, from observed conduct, to formal internal or external complaints, to informal complaints (e.g., “I just thought you should know…”). They should also be trained on the importance of conducting a prompt and thorough investigation. Remember, employees’ perception of the company’s commitment to a harassment-free workplace will be shaped by how the company responds to those issues when they arise. The company’s potential liability can be affected by how the company responds, as well. Thus, it is critical that your key personnel know when to start the process and how to do it right.
Finally, it is more important than ever that anti-harassment policies and procedures be embraced and championed at all levels of your organization. The best way to foster change in workplace culture is to visibly demonstrate a commitment to the principles promoted in your company’s policy and its training – from the top (the board of directors and senior leadership) down.
While the laws around discrimination have not changed, employers need to keep an eye on the legislative landscape. Take, for example, the December 2017 Tax Cuts and Jobs Act, which added a provision to the Internal Revenue Code that prohibits tax deductions for payments or settlements “related to sexual harassment or sexual abuse,” and for attorneys’ fees related to such payments or settlements if the payment is subject to a nondisclosure agreement. The new provision, which applies to amounts paid or incurred after December 22, 2017, is intended to discourage the use of nondisclosure provisions in settlements of sexual harassment or abuse claims by forcing employers to choose between the tax deduction and confidentiality. Regulations interpreting the provision have not yet been issued, so it remains to be seen how it will be interpreted. Employers settling claims of sexual harassment should consult their counsel and tax professionals on what effect, if any, this provision may have on those settlements.
Employers should pay attention to legislative initiatives at the state level, too. A number of states have introduced legislation prohibiting the use of nondisclosure agreements in sexual harassment claims in whole or in part. We expect there will be more to come.
Employers need look no further than current headlines to recognize the importance of taking workplace harassment issues seriously. Don’t let your company be the next headline. Take the time to ensure that it has the components in place to effectively educate the workforce, prevent conduct that can contribute to a hostile work environment and promptly and appropriately address issues of harassment if they do arise.