With social movements such as #MeToo and #TimesUp making daily headlines, society’s focus is increasingly turning to claims of sexual harassment and the exploitation of women and minorities. While many of the recent headlines have originated out of Hollywood, more and more news reports are emerging of alleged systematic harassment of women and/or other protected groups in the private sector.
With increased focus on exposing workplace misconduct, the likelihood for incidents of genuine harassment to come to the surface, and also for allegations of harassment to perhaps be invented, necessarily increases. If businesses are proactive, many of these allegations can be resolved without resorting to litigation and/or unflattering news coverage.
Some proactive steps businesses can take are as follows:
Update Your Employee Handbook
If it has been a while since the company updated its employee handbook, now is a great time to make sure that the handbook contains up-to-date policies prohibiting workplace discrimination and harassment. These policies should discuss, among other things, the types of conduct that are prohibited in the workplace and the mechanisms that are available for employees to report offensive behavior.
It’s Time For Training
A business should, not only maintain policies and procedures for addressing claims of harassment, but also conduct regular training so that employees are aware of how to report such claims. Taking these steps, in many cases, allows the business to avail itself of an affirmative defense to a subsequent lawsuit alleging harassment. Specifically, the company should maintain and educate employees about the procedures available to report claims of harassment. If the employee then elects not to utilize those procedures, often, that employee can be barred from asserting claims of harassment in a court or before an administrative agency. Businesses should consult with employment counsel to ascertain, in light of the nature of the business, how often training should occur and what the training should entail.
Don’t Discipline Alone
Many claims of discrimination or harassment center around disciplinary actions. An employee, not convinced that the discipline was warranted, lodges accusations that the discipline was issued as a result of the employee’s protected characteristics or activities. If the supervisor issuing the discipline has consulted with human resources in preparing the discipline and brings another supervisor to serve as a witness during the disciplinary meeting, these proactive steps can often minimize opportunities to mischaracterize what occurred during the disciplinary processs.
Take All Claims Of Harassment Seriously
Where an employee alleges that he or she is being discriminated against or harassed, businesses should act promptly to investigate these allegations. Even if the employee later tries to disavow the allegations (such as by claiming he or she was kidding or was just “venting” and does not want the claim to be investigated), the allegations should nevertheless be investigated. Businesses with a strong investigatory track record are often persuasive in demonstrating to jurors that they do not permit workplace harassment of any type. Since investigations can take many different forms (depending on the nature of the business and the allegations being asserted), businesses may benefit from consulting counsel throughout the investigation process.
If Warranted, Take Prompt Disciplinary Action
Oftentimes, investigations yield inconclusive results (especially where there were no witnesses to the alleged harassment). Yet, if the alleged harassment is substantiated, prompt disciplinary action should occur. Such discipline will vary significantly depending on the nature of the offense and other factors. However, where workplace misconduct has been verified, businesses are wise to not only take appropriate disciplinary action, but also, to document that the discipline occurred. Businesses may also want to consult with counsel to ensure that the discipline being issued is appropriate and consistent with the company’s past practices.
Shannon S. Pierce is Director for Fennemore Craig, P.C.