Sex harassment has filled the news media for several weeks with accounts of misdeeds of Hollywood producers, actors, congressmen, senate candidates, media personalities and, close to our home, the resignations of legislative members and the apologies of Senator Franken.
In all of the commentaries, one stood out to me as particularly troubling-a tweet by Teen Vogue columnist Emily Lindin on November 21, 2017 which said:
Here’s an unpopular opinion: I’m actually not at all concerned about innocent men losing their jobs over false sexual assault/harassment allegations.
In law school, we learned “Blackstone’s Ratio” which states, “It is better that ten guilty persons escape than that one innocent suffer.” William Blackstone, Commentaries on the Laws of England, 1765. This basic premise of protecting the innocent is being lost in the current climate of prosecution in the court of public opinion. We also learned in law school about the claim of defamation. If an employer takes action and fires an employee based on a false allegation of sex harassment, the employer may face other claims. Now is as good a time as any to remind employers of their obligations under the law.
As employers, you have duties set by law to investigate sex harassment complaints and then take reasonable measures calculated to end the harassment. To that end, employers must have policies on sexual harassment, train employees in these policies and educate managers on the implementation of the policies. An employer’s harassment policy serves several ends. It helps identify and deter offensive conduct in the workplace. It provides an avenue of protection for the employees and promotes communication within the workplace environment. It further protects the employer. An employer properly adopting and administering a harassment policy greatly limits if not eliminate potential lawsuits for workplace conduct that would otherwise go unchecked. An employer who properly investigates a claim of harassment protects the rights of the accuser and the accused and will find itself less likely to be challenged after making a careful and reasoned decision.
Now is the time for an employer to review and update its policies. If it doesn’t have one, it should contact legal counsel and put one in place. Sex harassment is at the forefront of the news. The employer needs to take action before the court of public opinion does that for them.