HR Best Practices: Handling Sexual Harassment Claims
From Harvey Weinstein to Matt Lauer, sexual harassment has been a fixture in the news and media over the last year. While many employers and HR professionals may watch these, and many others, stories of high profile individuals being accused of sexual harassment believing it has no relation to their business or work, that is not the case. These incidents of sexual harassment, many occurring in the workplace, are empowering more people to speak out about situations in which they may have been sexually harassed, but did not immediately report it. In order to assist employees and others to feel comfortable reporting any conduct that may be harassing, employers should review their handbooks and policies to ensure employees know how to report such behavior and that the proper techniques are in place to investigate and handle each situation.
PROACTIVE STEPS FOR EMPLOYERS
While most companies are not overly excited to review and update their employee handbook or company policies, doing so prior to implementation can save a lot of time and money, especially when it comes to an anti-harassment policy. Most importantly, your company should have an anti-harassment policy. Within that policy, make sure to have a clear, laid out process of reporting so that employees reading it know exactly who they can report to and how to go about making a report. It is also important to identify the investigatory process the company will undertake upon receiving a report so that the employee understands what will happen and the investigators know exactly what is expected of them. Training employees on the company's anti-harassment policy and how it works is pivotal to providing employees with a known, easily accessible and safe environment in which to report. Training also assists those who may have to conduct the investigation into the report so they are ready to immediately begin the investigatory process when a report is made.
Reviewing and updating your company's sexual harassment policies is not only a good practice that will pay dividends if you ever need to put said policies into play, but it can also serve as a legal defense against claims of hostile work environment harassment by supervisors or superiors. Generally, the Faragher-Ellerth defense is recognized by most states and can be used by employers as a defense if:
There was no tangible adverse employment action taken against the employee bringing the lawsuit (for example: no discharge, demotion or undesirable reassignment);
The employer exercised reasonable care to prevent and promptly correct the harassing behavior (for example: a harassment policy demonstrates reasonable care to prevent harassing behavior); and
The employee bringing the lawsuit unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to otherwise avoid harm (for example: not taking advantage of reporting procedures outlined in an anti-harassment policy).
Companies that fail to have an anti-harassment policy that outlines reporting procedures and steps the company will take upon receiving a report of harassment are not only opening themselves to liability in a number of ways, they are also limiting their ability to defend themselves if they are sued.
If you have any questions regarding the tips above or would like help drafting or reviewing your current policies or handbook, please contact your Thompson Coe attorney at (651) 389-5000 or at myHRgenius@thompsoncoe.com. You can also find helpful information on the drafting of other policies and procedures at https://thehrgenius.com/.
Thompson Coe’s Tips of the Week are not intended as a solicitation, do not constitute legal advice and do not establish an attorney-client relationship.