Looking For A New Year’s Resolution? Refresh/Redo Your Harassment Training!
Unless you have completely given up on all television, newspapers, and social media (and nowadays, who could?), you know that sexual harassment in the workplace is a significant issue right now. Unfortunately for many organizations, it is easier to ignore the issue as something that only occurs in Hollywood, Washington, DC, or in high profile industries outside of the Midwest. Yet, the #MeToo movement that emerged out of these high profile complaints reveals that a significant number of women have experienced sexual harassment in their own workplaces—harassment that most of them never reported.
What does this mean for employers?
While we would all like to hope that things are different in the Midwest—that we all treat everyone with respect and dignity and have “open door” policies—the harassment landscape is changing for everyone. Many who shared stories of their own #MeToo experiences indicated that they did not report concerns because they perceived that their workplace culture was one where such a report could jeopardize their employment. Whether this was true or not, the perception that nothing would be done, or that they could suffer retaliation, prevented them from reporting the issue.
From a legal perspective, when someone alleges harassment by a supervisor (which did not result in some form of tangible job detriment), the employer has the affirmative defense that “(a) it exercised ‘reasonable care to prevent and correct promptly any sexually harassing behavior’; and (b) the employee ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'” In other words, if an employer can show that it has a valid anti-harassment policy in place, it trains its managers and employees on such policies, and the employer responds promptly to investigate and respond to allegations of harassment, the case is more likely to be dismissed if the accuser still did not report the concern.
For this reason, employers need to consider how the current media attention affects their efforts to show it took “reasonable care” to prevent harassment. Ultimately, it’s all about perception. Employers who fail to take a stand on workplace harassment in light of the media attention could be viewed by employees as not caring about the issue. As a result, those employees may be less likely to report concerns because they do not feel that the employer will listen. For this reason, employers who ignore this opportunity may later have difficulty proving that their anti-harassment policy is effective.
Make it your New Year’s Resolution to refresh your harassment policies and retrain all employees (including managers) on harassment—whether sexual or otherwise. Employers should have candid discussions—not just about reporting mechanisms, and what could be considered inappropriate conduct—but also about how employees should respond if they observe inappropriate behavior by and toward others. A culture where employees hold one another accountable is one which is less likely to see sexual misconduct in the workplace, or at the very least, to have such misconduct go unreported.
Contact your employment counsel if you would like assistance with your harassment training. Together, let’s make harassment in the workplace obsolete.