Are You Sure Your Sexual Harassment Policies Are Up-To-Date?
By John Rubiner, Esq. Legal Perspectives November 17, 2017
In the last month, sexual harassment in Hollywood has taken over the national discussion. Major media outlets such as the New Yorker, New York Times, Los Angeles Times, and others have described detailed allegations against several Hollywood power-brokers and actors. The most famous allegations have been against Harvey Weinstein, a prominent American film producer and a co-founder of the The Weinstein Company. Similarly, according to the Los Angeles Times, over 300 women have contacted the paper to describe harassment and assault allegations against screenwriter and director James Toback. More recently, several women have made assault and sexual harassment allegations against film director and producer Brett Ratner and there have been allegations made against prominent actors Kevin Spacey and Dustin Hoffman as well as comedian Louis C.K.
But the trend of sexual harassment allegations is not limited to the proverbial Hollywood “casting couch.” At Fox News, various high-profile women made – and later settled – sexual harassment allegations against the late Roger Ailes (the former chairman of Fox News). Similarly, in April 2017, The New York Times reported that host Bill O'Reilly and Fox News had settled five harassment lawsuits dating back to 2002. Sexual harassment, however, covers the political spectrum as National Public Radio recently requested the resignation of its senior vice president of news and editor Michael Oreskis. Similarly, United States Senator Al Franken was recently accused of kissing and groping a colleague during a USO tour prior to his becoming a senator.
While the entertainment and news industries – with their famous perpetrators and victims –command media attention, the press has reported an array of sexual harassment cases at companies such as Amazon and Uber. There are even allegations of wide-spread harassment in the California legislature as well as the British Parliament (on both sides of the political aisle). In Canada, the government has proposed new labor laws that would enact stronger protections against sexual harassment and, for the first time, cover Parliament Hill staff like interns and aides to MPs and senators.
In October 2017, millions of men and women began posting on Twitter and Facebook about their experience with sexual harassment and assault using the “#MeToo” hashtag. Consequently, we are now at one of those moments when sexual harassment is once again part of the daily discussion. Unfortunately, this is not the first time we have had a moment like this in recent American history. Anita Hill’s 1991 testimony during the confirmation hearings for Associate Supreme Court Justice Clarence Thomas started a national conversation on sexual harassment that has continued to this day. Similarly, the popularity of television shows such as Mad Men – and its portrayal of a 1960s office rife with discrimination and harassment – brought the issue further to the surface. During the 2016 U.S. Presidential Campaign, the Washington Post published a video and accompanying article about then-presidential candidate Donald Trump and television host Billy Bush having "an extremely lewd conversation about women" in 2005. In the video, Trump indicated that he might start kissing a woman that he and Bush were about to meet during the filming of an episode of Access Hollywood. (Mr. Trump also described assaulting women – though he later dismissed his comments as mere “locker room” talk.) This incident became yet another rallying cry concerning sexual assault and sexual harassment in the workplace. Some sociologists have identified this moment involving then-candidate Trump as the precursor for the explosion of moral outrage concerning the extensive allegations of sexual harassment in Hollywood beginning in October 2017.
We are clearly at a moment when the subject of sexual harassment is being discussed at homes and workplaces in the United States and around the world. Thanksgiving is approaching, and it is likely that people will sit around tables and living rooms and will discuss these issues.
While these high-profile cases have brought the concept of sexual harassment into the general conversation, both management and plaintiff lawyers have known about sexual harassment cases for years. The very recent perpetrators may be more famous, but there is no denying that the misconduct at the core of these cases, and employers needing to deal with these issues, go back decades. Sexual harassment (and other types of harassment such as that based on race or sexual orientation) will likely continue so long as human beings work together.
While it is difficult to generalize, experience has shown certain essentially undeniable truths about workplace sexual harassment:
- Sexual harassment can happen anywhere. It can happen at any job in any industry. No employer is too big or too small. It can happen at major law firms and small retail shops. It is a problem for both white collar and blue-collar employees. Moreover, even the best policies and procedures may not be enough to stop it from happening; an
- Sexual harassment doesn’t happen everywhere. Despite the recent publicity and seeming avalanche of claims against rich and famous people, not every Hollywood producer is demanding sexual favors or assaulting his (or her) employees. People must certainly be vigilant because sexual harassment can happen anywhere. However, there are companies with policies that are followed and where men and women work with each other in a respectful and professional environment. This can be true in any industry and irrespective of an employer’s size.
Rather than bemoan this moment in time, employers should embrace the opportunity to have a broad conversation with their employees about sexual harassment and what type of culture the employer wants to promote. As sexual harassment – or any other protected form of discrimination – is unlikely to go away completely, employers should use this opportunity to look inward and review itself.
Concrete Steps Moving Forward
What can an employer do to make sure that sexual harassment doesn’t happen in their workplace? An employer must recognize that sexual harassment can happen at their workplace and must be proactive.
- Create a culture that has zero-tolerance for harassment or discrimination in any form. This starts at the top – which explains many of the high-profile failures at Fox News, the Weinstein Company, and other employers. No individual in a company can be immune from its anti-harassment policies and the company’s leadership needs to demonstrate the importance of the zero-tolerance policy. The heads of companies must lead by example. The leadership should attend training seminars and do all it can to ensure that employees understand the company has a commitment to providing a safe, harassment-free, and discrimination-free workplace.
- Have up-to-date policies and procedures. The company should develop, implement, and enforce a zero-tolerance anti-harassment policy. While sexual harassment is currently in the news, these policies must include other protected classes – race, religion, sexual orientation, and other categories protected by local, state, and federal laws. Additionally, the policy should describe the forbidden conduct using clear and concise language. In this way, employees can grasp the importance. In California, the Department of Fair Employment and Housing (DFEH) has set forth a guide for drafting an anti-harassment policy.
- Ensure the policy has zero-tolerance for retaliation. A policy provision against retaliation is the key to an effective zero-tolerance policy. Not only must the corporate culture encourage the reporting of harassment, it must be equally vigilant in ensuring there is no retaliation against either those who complain of harassment or those who assist them. In fact, a company does best when it has a culture of encouraging employees to speak up and, if necessary, “speak truth to power.” Both strong ant-retaliation policies and a deep commitment to those policies are the only way to ensure employees are empowered to report misconduct.
- Ensure your complaint procedures allow for multiple levels of reporting. Since anyone can perpetrate sexual harassment, a company needs multiple places for an employee to report that harassment. Consequently, each company should have a process with at least two or three separate ways for an employee to report the harassment. Obviously, a policy can’t work if the employee must report the harassment to the alleged harasser. A policy must be written to ensure that an employee can feel safe in reporting harassment to someone in the chain of command no matter who the alleged harasser may be.
- Train managers and employees on the policies and procedures. Training is key. Encourage employees to not only learn the substance of your company’s policy but how the policy and its complaint and investigative processes are implemented. Have discussions – with hypotheticals – about what is, and is not, harassment. Employees should be trained in the onboarding process and regularly throughout their tenure. (Some states, such as California, have laws concerning the timing and content of anti-harassment training for some employers.) As the high-profile examples reveal, employees must be encouraged to speak up and be part of the solution. Every supervisor needs to know what to do if an employee makes a harassment claim (even if it is just casually made during a conversation). Not only must employees know what to do, but the training should emphasize to every employee that he or she has personal responsibility for protecting the company and its employees.
- Investigate Every Complaint. Employers need to follow their procedures and investigate every complaint of harassment or discrimination. Depending on the nature of the claims, an employer may need to hire an outsider to investigate. There are many guides to how an investigation should be conducted but it should be timely and fair. A good starting point for considering how to run an investigation can be found in the DFEH guidelines.
- Be careful about promising confidentiality. Confidentiality is something that can be confusing for employees and managers. Employers cannot promise complete confidentiality when an employee even hints that he or she was subjected to harassment. Companies can only promise limited confidentiality—that the information will be shared with those who must have it. Given the confusion about confidentiality, the DFEH has explained the issue as follows:
- If the complaint is of potential violation of law or policy, the employer will need to investigate, and in the process of investigating it is likely that people will know or assume details about the allegations, including the identity of the person who complained. This is true even when the name of the complainant is kept confidential since allegations are often clear enough for people to figure out who complained about what.
- The individual receiving the complaint will usually have to consult with someone else at the company about what steps to take and to collect information about whether there have been past complaints involving the same employee, etc. That means the complaint will be discussed with others within the organization.
- The company may need to take disciplinary action. Again, while the identity of the person who brought the complaint may in some cases be kept confidential, the complaint itself cannot be.
- After the investigation, deal with the problems. Doing a thorough investigation is not enough. To deal with harassment on both an individual and systemic basis, it is important to not only do a timely investigation but to do something because of the investigation. Discipline up to and including termination may be appropriate. It should be proportionate to the conduct, but it must also show the company’s continuing effort to eradicate harassment. In addition to formal discipline, an alleged harasser may be required to attend classes on harassment. Similarly, the employer should consider structural changes – such as changing reporting relationships or providing additional training.
The flip-side of the “#MeToo” campaign is employers thinking “not here” and “not us.” This is dangerous thinking as it could lead to complacency and a lapse in a company’s culture. A firm reality is that sexual harassment can happen anywhere at any time. We are at a moment in time when people are talking about sexual harassment. In the coming months, people will be discussing sexual harassment as they sit around holiday tables. While new allegations of sexual improprieties are seemingly daily occurrences, employers should use this moment in time as an opportunity to discuss its policies, procedures, and overall corporate culture that is hostile to unlawful discrimination or harassment in any of its many forms.
If you have questions about this article or any other employment-related matter, please call John Rubiner at 310/441-0500 or email him at firstname.lastname@example.org.