By Susanne J. Fischer
From the entertainment industry to the federal and state legislative chambers, allegations of sexual harassment abound. Social media sites are flooded with “Me Too” stories of women, and men, coming forward to describe incidents in which they were subjected to sexual harassment, or to support their co-workers. No workplace seems safe as sexual harassment is not confined to well-known public figures. This maelstrom of allegations and “Me Too” stories demonstrate sexual harassment in the workplace remains a serious, widespread problem, and women are becoming more empowered to come forward. Considering today’s outrage at sexual harassment, and supporting women who have been reluctant to report sexual harassment, all employers must assess whether they are doing enough to prevent and address concerns when a complaint is brought forward.
Following the 1998 United States Supreme Court decisions in Ellerth and Faragher, which held an employer “strictly liable” for any gender-based harassment by an alter-ego of the company (president, managing director) or a supervisor that results in a tangible job detriment, more employers were motivated to implement policies and training. If no tangible adverse action, employers have an affirmative defense if it can show it has policies, a complaint reporting system communicated to employees, training, and the employee failed to make a report. The employer also has to respond promptly to complaints and take appropriate action.
Today, most employers have policies and training focused on prohibiting sexual harassment and other forms of harassment. Often, the training is infrequent and consists of online or short training at the time of hire. Many employers simply “check-the-box” by providing such training to be able to assert its affirmative defense. It is clear, however, “check-the-box” training to prevent workplace sexual harassment has not been effective and needs to change.
The question is not whether training was conducted, but how it is conducted. Training conducted on a regular basis by qualified, skilled facilitators in face-to-face and interactive sessions has shown to be more effective by increasing the participants’ understanding of what harassment and other unacceptable and disrespectful conduct is in the workplace. In addition, employees need to know their concerns will be heard, taken seriously and appropriate action taken in a timely manner without fear of retaliation.
Policies must provide multiple avenues for employees to bring forth concerns about sexual harassment. Employees should be given frequent communications on how to make complaints, or report observed harassment, with options for reporting to different people. We know employees who have issues, discuss those issues with the persons in positions of power whom they trust, usually their supervisor. As a result, supervisors should be held accountable for not only modeling appropriate behavior, but also trained in skills to effectively field employee complaints, including what to say and do when an employee raises a concern. Taking the concern raised seriously, and prompt inquiry is essential to creating a positive, respectful work environment. Only then will employees subjected to sexual harassment or other inappropriate conduct likely come forward.
Leaders need to be held accountable, and hold others top-to-bottom accountable when findings support these allegations. Every employee also needs to assess their own conduct, and commit to respectful, appropriate conduct towards others in the workplace. Similar to the “It’s on Us” campaigns in colleges and universities to combat sexual assault, all employees need to take responsibility for their own behavior, and to “do something” if they witness sexual harassment and other inappropriate behavior.
Although shocking to many, the numerous reports of alleged sexual harassment and inappropriate conduct present an opportunity for employers to do more to protect their employees and provide an environment that is respectful, professional, and positive. Every employer, public and private, needs to ensure a workplace where employees feel safe and know the employer will promptly and properly address all forms of harassment and all other types of inappropriate conduct. We have a long way to go, but more effective policies and training are a good start to making the workplace safe.
Sue Fischer is an experienced attorney focusing on employment law who works with businesses to conduct and develop training and performance management programs, policies and handbooks. She also works with companies and executives on employment, non-compete, and separation agreements. Fischer, along with attorney Sheila Engelmeier, was a substantial contributor and primary developer of the premier training tool, Respect Effect. Fischer has experience litigating all types of employment disputes and also counsels employers in the full spectrum of employment law topics. She is also very experienced in conducting workplace investigations. For more information, contact Sue Fischer at (612) 455-7720 or visit www.e-ulaw.com.