My 12-year old daughter, Jane, inquired into the subject matter of this article. I hesitated, but ultimately informed her it was on sexual harassment in the workplace. The response I got was: “You’re weird, Dad!” I hope one day in my lifetime there will not be a pressing need to address such a “weird” topic. But alas, this topic needs to be addressed now more than ever, for Jane, and for the rising and current generation of female workers in Utah. The recent explosion of sexual harassment allegations and reckoning has been astounding:
- The Weinstein Company fires Harvey Weinstein amid allegations of sexual harassment, assault and rape (October 8, 2017).
- National Public Radio forces Michael Oreskes to resign for forcibly kissing two women while discussing job prospects and amid another claim in October 2015 of sexual harassment (November 1, 2017).
- Netflix terminates its production relationship with Kevin Spacey as a result of multiple on- and off-set sexual harassment allegations (October 2017).
- NBC News terminates its contract with Mark Halperin after five women came forward alleging he harassed them (November 2017).
- Amazon Studios Programming Chief Roy Price resigns after allegations of sexual harassment from multiple women on multiple occasions (October 2017).
- SoFI CEO steps down after claims of managers’ sexual harassment (September 12, 2017).
- 21st Century Fox pays out $50 million in costs and fees to settle harassment claims against Fox News (August 14, 2017).
- Uber CEO takes leave of absence amid sexual harassment scandal (June 13, 2017).
- BetterWorks CEO steps down following accusations of sexual assault and sexual harassment (July 26, 2017).
What’s more haunting are the accounts of thousands of #metoo stories uncovering rampant workplace harassment throughout the United States. In anticipation of the New Year, the time is right for Utah companies to consider the current state of their work environment and culture. Do your employees feel safe from sexual harassment? Do your policies invite a “see something say something” environment, or is there a “head in the sand” culture? Is your company ignoring “Harvey Weinstein” patterns and behaviors? What can your company do differently this year to ensure your most valuable asset, your employees, are safe from sexually harassing behavior, and your company is protected from erosion of goodwill and significant legal liability?
For six out of the last seven years, Utah has ranked No. 1 on Forbes “Best States For Business” list. This ranking is based on Utah’s friendly regulatory environment for businesses, our educated workforce and growth outlook, among other things. But where would we stand if “Best States For Business” considered the work environment and culture of Utah’s companies?
There are at least three best practices Utah employers should implement in 2018 to avoid a #metoo culture and create a harassment-free workplace. I refer to them as the three Rs: recognize, respond and remedy.
Recognize sexual harassment in the workplace
Courts recognize two forms of sexual harassment, quid pro quo and hostile work environment. Quid pro quo is Latin and it means “this for that.” Quid pro quo harassment applies where a supervisor seeks sexual favors either in return for a job benefit (e.g., star role in a movie, pay raise or promotion), or to avoid an adverse employment action such as a demotion, pay cut or termination. Quid pro quo harassment also occurs when an employee’s reaction to a sexual or romantic advance negatively affects her (or his) employment. There are many recent examples of this in the entertainment and media industries.
Hostile work environment harassment occurs when a supervisor or co-worker’s conduct creates an intimidating, hostile or offensive work environment that interferes with or alters the terms and conditions of the employee’s employment. Hostile work environment harassment takes many forms and may include:
- Touching or brushing against an individual’s clothing, body or hair;
- Initiating unwanted sexual activity, such as kissing, touching or hugging;
- Rubbing or touching anyone sexually in the presence of another;
- Exposing oneself;
- Staring or looking at someone up and down;
- Blocking or impeding an individual’s movement;
- Giving unwelcome gifts;
- Making sexual gestures;
- Standing or sitting too close to someone.
Gender is also irrelevant. Men can harass women. Women can harass men. Men can harass men. Women can harass women. The most common cases filed involve allegations of men harassing women.
It is essential that managers and employees understand what sexual harassment is under the law, and that company handbooks and policies specifically define and identify clear examples of sexual harassment, as described above. Frequent trainings and refreshers on the company’s sexual harassment policies is culture critical and goes a long way to reduce corporate exposure.
Respond to sexual harassment claims
Responding to sexual harassment claims does not mean hiring intelligence agents to intimidate, gaslight and prevent victims of sexual harassment from ever filing a lawsuit. A more reasonable approach is encouraged and rewarded under the law. First, companies should provide their employees safe and confidential access to report harassment, including alternative reporting lines in the event the employee’s supervisor is the alleged harasser. Second, when harassment is reported or you see or hear something that has the appearance of sexual harassment, your company should immediately investigate.
The Equal Employment Opportunity Commission (the government agency that enforces Title VII) and courts expect companies to conduct sophisticated, thorough and timely investigations into alleged sexual harassment. In most instances, companies can avoid legal liability for sexual harassment if the employer exercises reasonable care to prevent and promptly correct any harassing behavior.
Moreover, companies should instill employee trust in management to consistently enforce policies and procedures. Management cannot establish this trust without actively investigating complaints of sexual harassment. When you establish a consistent pattern of investigating formal and informal claims of misconduct you create a zero-tolerance culture for sexual harassment. Employees will think twice about violating company polices because they know such violations will not be ignored. The act of responding deters future misconduct.
What’s the remedy?
What is the appropriate remedy when your investigation reveals that some form of sexual harassment occurred in the workplace? The appropriate legal disciplinary remedy depends on the facts and circumstances of each case but should always have one goal in mind: preventing the harassment from ever happening again.
Of course, terminating the harasser will always ensure the conduct is not repeated and should be considered where there is a pattern of behavior or even a single act of particularly egregious conduct. But termination is not always necessary to deter future misconduct and may not be required by law. Employers have many disciplinary options depending on the circumstances: unpaid suspension, probationary periods, demotion, relocation or a written warning. In most situations, the harasser and victim should no longer work in close proximity and should not be in a direct-line reporting relationship.
As you consider company resolutions for 2018, none could be more important than implementing meaningful anti-harassment policies that are intended to recognize, respond and remedy any and all sexual harassment in the workplace. Utah employers should aim to not only be No. 1 on Forbes Best States for Business list next year, but also No. 1 in creating safe and harassment-free workplaces and avoiding the #metoo culture. It’s not just the law, it’s the right thing to do.
Christopher B. Snow currently serves as co-chair for Clyde Snow & Session’s Labor & Employment Group. Clyde Snow’s Labor & Employment Group represents local and national businesses in all areas of workplace law. For more information please contact Mr. Snow at email@example.com.