Sexual Harassment Investigation and Defense

Sexual harassment claims have re-entered the national spotlight in the wake of the #MeToo movement. With a new generation of employees entering the workforce, employers need to re-evaluate their sexual harassment policies with a view toward educating less experienced workers on what is sexual harassment versus what is not sexual harassment. Employers must seize the opportunity to revise their anti-harassment policies to ensure that expectations are clear.

In addition to “typical” sexual harassment claims involving “quid pro quo” harassment, where a male boss forces a female subordinate to submit to sexual advances in order to keep her job or in order to move up in the company, there are many other forms of sexual harassment and related hostile work environment claims which are prominent and may be more difficult to manage:

• Excessive staring during otherwise legitimate workplace conversations leads to allegations of harassment – Google addressed this issue by implementing a “5 second rule” on looking at any co-worker
• Claims of “micro-aggressions” by co-workers who make seemingly innocuous comments about the co-workers’ own interests or observations
• Claims of sexual harassment made by male subordinates against female supervisors
• Claims of sexual harassment by and against members of the same gender
• “Retaliation” sexual harassment claims where a formerly consensual relationship ended and now is reported as sexual harassment or a hostile work environment
• Claims of sexual harassment/hostile work environment made against male supervisors who provide criticism of female subordinates’ work, making the female subordinates “uncomfortable”
• Claims of sex discrimination and hostile work environment where male supervisors do not have private, closed-door meetings with female subordinates
• Gender discrimination claims where an employee identifies as a member of a gender other than the employee’s previously identified gender and/or an employee is transitioning to another gender
• Claims of gender discrimination involving conduct based upon sincerely held religious beliefs

The list of potential claims related to sexual harassment and a hostile work environment based upon sexual discrimination is seemingly unending. Employers cannot simply have a handbook with a generic policy prohibiting sexual harassment. Recent court cases and guidance from the government agencies which administer discrimination laws are clear that in addition to having the policy, employers must communicate the policy to employees and must make it clear that the policy will be enforced against employees at all levels in order for the employer to even have a chance to defend itself. Employers should take a 3-step approach to evaluating and upgrading their sexual harassment policies.

PART 1: DO NOT JUST HAVE A POLICY – HAVE A STRONG POLICY AGAINST SEXUAL HARASSMENT

A few basic upgrades can substantially strengthen the company’s policy and protection of the employer:

1. Cover all forms of harassment in one policy: Anti-harassment policies should cover more than sexual harassment and should include the many other bases of discrimination which are prohibited by law including race, age, disability, ethnicity, religion, etc. Sexual harassment claims often morph into other areas, and employers must demonstrate that they prohibit all forms of harassment. Employers who have an anti-sexual harassment policy but not a policy prohibiting harassment on other protected bases are walking into a blizzard with a coat but no boots.
2. Eliminate “legal” definitions and terms: Employers lose the protection of their anti-harassment policy if employees can claim credibly that they could not understand the policy and did not know what it was, what it covered, or how/when the policy applied to them. Consider including “real life” examples of unacceptable conduct in the context of your company’s work and culture. The examples do not have to be specific or explicit, but should be enough to give the reader a fair understanding. A policy prohibiting “posting explicit pictures, commenting on a co-worker’s body, discussions about sexual acts,” etc. gives examples which “paint a picture” without themselves violating the policy or making employees uncomfortable.
3. Do not focus solely on what is legally prohibited: For sexual harassment to become legally actionable, the harassment either needs to be “pervasive” or “severe” and by that time, the harassment undoubtedly has had a major negative impact on the workplace. Anti-harassment policies which focus solely on what the legal standard of “harassment” is when read to a jury at the end of a court trial fail to protect employers who want to try to prevent claims from arising and hurting their business. There are many forms of conduct which, in an isolated incident, do not amount to a legal claim of harassment but are not acceptable and those “isolated” incidents, if those incidents are not dealt with promptly and effectively, will become more pervasive and later constitute an environment of “pervasive harassment” before the employer realizes what has happened. A single comment about someone’s physical appearance said as a compliment but with a possible sexual connotation may not be legally actionable, but when an employee is subjected to suggestive comments on a regular basis, both legal and moral lines have been crossed. Not only is it inappropriate for an employee to be expected to tolerate such behavior, but if the employee has unrelated workplace performance problems, the sexual comments and innuendo could be used by the employee to justify subpar performance. Demeaning, hostile, “hateful,” explicit, or other forms of conduct or remarks meant to harm, intimidate, or insult another are not acceptable regardless of whether the legal standard of harassment can be proven, and an effective sexual harassment policy must be clear on that point.
4. Examples of sexual harassment are important: Examples of “classic” sexual harassment should appear in an anti-harassment policy (i.e. requiring an employee to submit to sexual advances in order to get a promotion), but the policy also should include prohibitions against conduct which could result in a hostile work environment such as sexual banter, sexual jokes, texting inappropriate pictures, and inappropriate touching. Ensure that the policy is gender neutral.
5. Ensure that the scope of prohibited conduct is sufficient to protect the company: Make sure that the anti-harassment policy prohibits wrongful conduct by any representative of the company regardless of title and also applies to third parties whom interact with the company such as vendors and clients.
6. Conduct outside of work must be covered: Conduct with co-workers outside of work can quickly pervade the workplace and create major liability for employers. Sexual harassment policies must cover conduct at company-sponsored social events and social media posts which would violate the policy if said in the workplace. If social media posts can be seen by co-workers, even if the social media account is otherwise marked “private,” those posts and their consequences can infect the workplace. Anti-harassment policies should apply to social media posts which are about or may be seen by employees, customers, and clients. At a bare minimum, such a policy puts employees on notice that their social media posts may be the basis of discipline when their “private” posts create a problem at work.

PART 2: STRENGTHEN THE SEXUAL HARASSMENT COMPLAINT PROCESS

Equally as important as the anti-harassment policy is the process which employees are expected to follow if the employee feels that he/she is being subjected to or has witnessed sexual harassment. Employees must feel that if they raise a complaint, that complaint will be taken seriously and that the employee will not be retaliated against for complaining about harassment. A few reminders:

1. Clarify who can raise a complaint: If harassing conduct is occurring in the workplace, any witness to that conduct must be able to bring the complaint. The person being harassed may be embarrassed or fearful of retaliation and the longer the conduct occurs, the worse the conduct will become and the greater the risk to the company. The policy must be clear that anyone who is subjected to, witnesses, or otherwise becomes aware of conduct occurring which violates the policy should report the conduct.
2. Have multiple ways to report a complaint: Effective policies must give employees several alternative persons to whom employees can report improper conduct. Employees must be able to report to their supervisor, a human resources representative, any other member of management, etc., at the employee’s discretion. Consider having an anonymous “tip line” or message board where complaints can be reported. If employees feel that they cannot report the conduct because they are forced to report to the person involved or the person who let the conduct continue, the employee will simply say that the policy is “ineffective” and the employer will lose the protection of the policy.
3. Investigate complaints in a fair manner: Investigate all sides of a complaint, and make it clear in the policy that if the company determines that a complaint is knowingly false, appropriate action will be taken. It is important that the company protect the rights of all parties to a complaint and all employees and witnesses should feel that they are treated fairly in the investigation of a complaint. Ask for copies of private messages and photographs shared between the accuser and the accused so that the company can have a complete picture of the situation. If sexual harassment is occurring, that harassment may be occurring on privately owned devices and outside of work hours. Addressing only what occurs during work may not effectively address sexual harassment or may allow a false complaint to proceed. The company may not always take the action an employee might want in response to a complaint, and it is important that the employee feels that the complaint was taken seriously regardless of the outcome.
4. Take strong corrective action: The policy must state that appropriate corrective action will be taken, and taken promptly, if sexual harassment occurred. Regardless of whether the action meets the legal definition of sexual harassment or a hostile work environment, inappropriate conduct should be prohibited and acted upon. The sexual harassment policy should state that violations of the policy will result in “appropriate” corrective action. That action could include termination of an employee, termination of a vendor or client relationship, or other action as determined by the circumstances.

PART 3: HAVE A STRONG PROHIBITION AGAINST RETALIATION

Even if a complaint of sexual harassment is determined to have no merit and no action is taken in response to the complaint, if an employee is subjected to retaliation for having made the complaint, the company can be subject to the same, if not greater, liability. The main reason that employees cite for not reporting sexual harassment is the fear of retaliation. A sexual harassment policy must have a strong anti-retaliation provision to begin to combat that excuse for non-reporting, and the company must put that anti-retaliation policy into practice. A few critical points:

1. The anti-retaliation provision must protect not just the employee subjected to the improper conduct, but also witnesses and anyone participating in the investigation of the complaint.
2. The policy must not only protect an employee from retaliatory termination but also from other forms of less obvious adverse consequences such as isolation in a department, the supervisor’s refusal to meet with an employee, removal from an important committee, or “bad mouthing” the employee whether at work, with clients, or on social media.
3. The policy must state that even if the underlying complaint does not have merit or result in discipline, it is not acceptable for a supervisor or any other company representative to engage in retaliation.
4. The policy must state that employees and witnesses are free to report retaliation in the same manner as they could report an initial complaint of harassment, giving the employee/witness the discretion as to how to report in a manner which makes the employee/witness most comfortable.
5. The anti-retaliation policy must be communicated to all involved including accusers, the accused, and witnesses throughout the investigation of a sexual harassment complaint. In addition to stating the anti-retaliation policy in the anti-harassment policy, it is critical that the person conducting the investigation of a sexual harassment complaint communicates to every individual participating that retaliation is not tolerated. Supervisors must understand what constitutes retaliation so that they take care not to engage in retaliation without realizing it. Supervisors who are accused of sexual harassment may want to avoid a reporting employee so as to avoid further accusations but doing so may be seen as retaliation. In addition to protecting employees and witnesses, supervisors must protect the company and themselves.

Sexual harassment claims remain full of pitfalls for employers, but a strong sexual harassment policy can provide the foundation for an effective defense and minimize tremendous risk.