#METOO: An Employer’s Response to Sexual Harassment Allegations

Charles Swindoll once said, “I am convinced that life is 10% what happens to me and 90% of how I react to it.” Employers must prepare and react appropriately to sexual harassment in the workplace, and the failure of which may result in public litigation. There are several simple steps that should be taken to assist in stamping out sexual harassment in the workplace, and in doing so, the added benefit is that it may also reduce a business’s liability exposure.

Through the employee policy or handbook (cumulatively “Policy”) and employee training, the entity should make its stance clear: zero tolerance for sexual harassment. An entity Policy should include specific examples of what sexual harassment looks like. Clarifying sexual harassment will empower employees to report their experiences, as well as provide the entity a framework to identify such wrongful behavior. Additionally, the company’s posture should be shared with the workforce through regular proactive training and reminders. Make the training mandatory. Revisit the training periodically throughout the year to impress upon the workforce the seriousness of sexual harassment. Continually update the Policy to reflect recent legal developments and/or any new procedure that may have been developed through actual situations that occurred within the entity. Through the Policy and training, liability will be reduced as entity workforce culture aligns with the entity: zero tolerance for sexual harassment.

Employers must provide clear procedure for dealing with sexual harassment, such as reporting and investigating. The entity must establish open channels of communication that provide the employee with specific individuals to whom they may confidentially report any incident of sexual harassment. Establishing a specific hierarchy for reporting can encourage employees to disclose sexual harassment early on. Remember, 10% is what happens to you and 90% is how you react. Take seriously claims of sexual harassment regardless of severity—upon disclosure, react! Immediately preserve any records of disclosure and any other correspondence related to the claim, as contemporaneous notes establish a timeline and the diligence of the employer to respond as quickly as possible. Also, carefully determine who and how the matter is best investigated.  Investigation can be done internally, by in-house legal, human resources, or other persons as designated or it may be done by outsourcing the investigation to a neutral third party. Employers may find that the most prudent investigations occur when neutral third parties are retained given the inherent conflict that could arise should any internal party discover that the allegations of harassment are founded. Upon concluding the investigation, a decision must be made on whether further legal action should be sought. Regardless, the entity must properly document any decision or evidence gathered through the investigation to establish the basis for its reaction and response to the allegations.

Ninety percent of any situation can be governed by how you react; and, reacting to sexual harassment allegations is a cumulative, ongoing process. In the advent of sexual harassment, an entity must provide an employee the ability to securely reveal sexual harassment, whereby upon the disclosure of such, the entity acts. Simple prudence not only prevents sexual harassment, it also precludes further harassment upon discovery. Ultimately, it limits the employer’s liability by clearly establishing its position: zero tolerance for sexual harassment.

© 2018 Vandenack Weaver LLC
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