By Kyla Miller, Megan P. Toth, and Erin Dougherty Foley
Seyfarth Synopsis: Gone are the days where sexual harassment training will be enough. It’s time to shift the workplace focus from just ticking a box (i.e., training complete) to creating a culture where harassment (or discrimination) of any kind is truly not tolerated. Promptly and effectively responding to such allegations is one step in the right direction. This is the second article in a three-part series addressing sexual harassment in the workplace, which looks closely at corporate culture and provides tips on how companies might avoid being the next sexual harassment headline.
#MeToo In the Workplace and How to Address It
It’s been more than 30 years since the Supreme Court ruled that sexual harassment is a form of sex discrimination under Title VII, and it’s been nearly 20 years since it mandated that complaints of sexual harassment (and discrimination) be investigated. Yet, in reality, as made clear in recent media reports, most violations go unreported and uninvestigated. The EEOC estimates that, of the 30,000 harassment complaints they receive each year, only 6% to 13% of individuals who experience harassment actually file a formal complaint with the EEOC. However, the #MeToo campaign may be on its way to changing that statistic.
One key to preventing #MeToo in the workplace is fostering a corporate culture that not only says behavior matters, but also shows behavior matters. But how do employers both walk the walk and talk the talk? The following are some helpful tips:
- Understand what sexual harassment is … the obvious and the not-so-obvious.
The #MeToo campaign has revealed that the vast majority of people have questions or doubts about whether conduct really is sexual harassment. Let’s take a little quiz:
Could the following acts be considered sexual harassment? Answer Yes or No.
Requests for sexual favors?
Comments relating to a person’s sex generally?
A woman asking out another woman?
A man favoring another man (over a woman)?
A co-worker repeatedly teasing another co-worker about sex?
A client or customer sending gifts to an employee?
Could you definitively answer yes or no to each of these examples? Or did you need more context? Your answer should be the latter, because yes, each of those examples could be sexual harassment, but each of them could also NOT be sexual harassment. It depends on the nature, severity and pervasiveness of the conduct. Whether or not conduct legally rises to the level of actionable “sexual harassment” cannot be analyzed in a vacuum.
Confused? Here’s why: The question is (legally) whether the conduct at issue was “severe or pervasive,” such that it affected the terms and conditions of the employee’s workplace, objectively and subjectively.
The point –– Not all physical touching, bawdy conversations or allegations of sexual harassment are legally actionable — even if the person reporting it was offended. Each inquiry is unique and must be investigated thoroughly to determine if sexual harassment actually occurred and what corrective action, if any, should be taken.
- Foster an inclusive culture through training and positive reinforcement by managers.
Companies that continue to tolerate bad behavior are placing themselves at risk. Even conduct that does not cross the line but is disrespectful or rude takes a toll on employee morale. Attitudes and culture can change. Employers can provide training to set behavior expectations, and lead by example to create a culture that does not encourage or tolerate such conduct. However, training simply to prevent legal liability (i.e., because it is required by law) will fall short. Companies must work from the top down to incite change, which may include a whole-company approach to create and maintain a culture of tolerance, compliance and respect. In thinking about how to deploy that type of training, keep in mind that training should be:
- Tailored. Mirror training to realistic situations that are specific to your work environment.
- Frequent. Once a year or more. Anything less is not enough to highlight it as a high priority.
- Interesting. Vary the dynamic, style, form and content each time it is presented. (Keep it fresh!)
To create a systemic culture of inclusion, one place to start is with your Human Resources department. Your HR department should be diverse and accurately reflect your workforce so that they are able understand and respond to its unique demands. In addition to HR, the actions and integrity of your corporate leaders are crucial. Your company’s leaders must demonstrate a sense of urgency and commitment to your employees, and particularly to preventing discrimination and harassment. How, you ask? Commit the time and resources towards mindful training and continued support to top-level managers to ensure those who have the power and authority to effect change have the support and resources to do it. It bears repeating: a culture of tolerance and inclusion starts from the top down.
- Allow multiple avenues for reporting harassment.
Most employers have an anti-harassment policy. But simply stating that it is not tolerated is not enough. Make it clear that there are multiple avenues for reporting misconduct. For example, allow employees to notify human resources, contact a higher level executive, or call a third-party hotline. Giving employees multiple ways of getting the complaints heard further encourages such reporting.
- Identify situational risk factors.
Being proactive and identifying risks before they turn into problems (or even worse, lawsuits) is half the battle. One place to start is identifying and addressing circumstances, unique to your company, that may increase the risk for sexual harassment claims. For example, the following situations may increase the risk of sexual harassment claims:
- Workforces with significant cultural and language differences in the workplace;
- Workforces with significant age or gender imbalances;
- Workplaces that value customer satisfaction over employee well-being;
- Isolated workspaces;
- Workplace cultures that tolerate or encourage alcohol consumption.
- Understand the corporate role.
Even in the wake of heightened media on this issue, protecting your workforce and the company is not impossible. Employers’ legal responsibilities are to: (1) take reasonable efforts to prevent sexual harassment and (2) to promptly and effectively investigate, respond to, and address complaints. By doing both of these things, employers lessen their chances of being found liable for their employees’ behavior in the wake of a lawsuit.
As recent headlines suggest, “good enough” is “not enough.” Doing just the bare minimum will not suffice. Strive to do more. Over-train. Over-inform. Over-discuss. If employers can accomplish this, they are on the right path to preventing #MeToo in the workplace.
Next up – We will present insights from Seyfarth Shaw at Work’s Managing Director to share his insights from the front lines and provide his thoughts on how organizations can credibly and effectively combat workplace sexual harassment.
For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.