Legal look at workplace sexual harassment, part 2
The #MeToo movement has put sexual harassment in the spotlight. What do employers need to know about shoring up their policies, prevention, and legal protection?
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For part 1 of this feature, click here.
As we’ve often seen with cases of sexual harassment or misconduct, things can quickly devolve into a “he said, she said” scenario where getting to the truth becomes an exercise in interpreting intentions. While some actions are clearly violations of the law, such as inappropriate, unwanted touching, others are less obvious — a compliment taken out of context, for example.
Rather than wonder about all the things employees can’t say or do, one might ask “What can I say that won’t get me in trouble?”
There’s no easy answer there, says attorney Jessica M. Kramer, a partner at Kramer, Elkins & Watt who specializes in employment law.
“No lawyer in her right mind would give an employer client a list of safe phrases to say,” she states. “As with most things in law, the analysis of what is all right is fact-intensive, and no one can predict on which side a court will ultimately fall 100% of the time. It is not just about what is said, but it is also about by whom, to who, and how, in what context, is there history, etc. This may be one reason employers, and managers, struggle so much with what is okay and what is not and are afraid to allow compliment-giving. Often, it’s not the compliment itself, it’s the context.”
Instead, suggest Kramer, people might wish to consider the following questions, when giving a compliment or saying something else that has them questioning whether they could get slammed with a harassment claim:
- Does my comment or question relate specifically to the employee’s gender or sexual orientation, or could it be interpreted that way? If the answer is yes, it’s probably best to avoid it.
- Would I make this same comment to my boss? If you wouldn’t, why? Then maybe you shouldn’t make the comment to anyone at work.
“Keep in mind, the conduct has to be ‘severe and pervasive’ to constitute harassment under the law,” explains Kramer. “However, there are cases where a single incident has been found to be severe and pervasive. Will telling an employee you like his new haircut form the basis for a sexual harassment claim? Probably not. But, what if that employee ignores your compliment and you don’t like that reaction, and end up not giving him a new account? Then what? Harassment is often as much about how the alleged harasser and his or her superiors handle or react to a situation as it is about the initial conduct itself.”
Kramer says for many companies, a handbook or policies are written, distributed (these days, electronically), and promptly forgotten about. In order to really walk the talk, employers need to go further.
First, Kramer advises, employers should practice what they preach. This goes for all workplace policies. “Owners, directors, and managers need to set examples for the conduct they expect out of their employees, and this goes for treating others with respect and fostering an environment that is free from harassment.
“Second, encourage or even require regular re-reading of policies,” continues Kramer. “Some companies even give written tests on handbooks and policies. Such tests can uncover a need for additional training and education. Finally, human resources, or those in management if the company is too small for an HR department, should have an open door policy to encourage employees to come and ask if they are not sure what a policy requires or allows and address complaints or concerns promptly.”
When writing or rewriting a company harassment policy, consider quoting the Wisconsin Fair Employment Act, advises Kramer, so that you are not inaccurately paraphrasing what constitutes harassment. “In some written workplace policies, less words are better than more. This is not one of those, in my opinion. Since what actually constitutes improper ‘harassment’ could be very subjective, absent a written explanation, it behooves employers not to leave it open to the interpretation of each employee.”
Employers should not write harassment policies themselves or get them off the internet. Hire a skilled HR professional or employment attorney to write your policies, or to ensure existing policies are properly written to protect your company.
One concern that’s arisen in recent months as sexual misconduct allegations have been leveled at prominent figures is their hasty termination soon after an accusation is made.
Should employers worry about firing an accused harasser without proof? “This is going to depend more on the work environment and the needs of that particular company than anything,” Kramer states. “From a legal standpoint, absent a contract, employment in Wisconsin is at-will, meaning that an employee can be fired for any reason or no reason at any time, as long as the firing is not for a discriminatory reason.”
So, what about that accused harasser? He or she does not have an absolute right to continued employment, assuming he or she has no contract stating otherwise. However, an employer shouldn’t go around firing people as soon as there is a complaint, either.
“Sexual harassment allegations can make this a very sticky situation where, for example, the person who was accused of sexual harassment is fired, only to turn around and claim that he had actually been harassed,” says Kramer. “Then, the employer may have a wrongful termination suit on its hands.”
She says the best way to avoid backlash for such termination decisions is to be thorough and careful in investigating any complaints of misconduct, including sexual harassment. In addition to the policy that is in the employee handbook for all to see, companies should have a procedure that instructs management as to how any sexual harassment complaints will be handled.
Larger companies often have a formal step-by-step grievance process. For smaller companies, that does not always make sense. However, a company of any size can have a plan to interview the accuser, separately meet with the accused harasser promptly, and gather other available information in a discreet manner. Then, if appropriate, the company can make temporary changes, such as ensuring the accuser and accused do not work alone together, reassigning the accused to a different department, or if appropriate, suspend the accused pending further investigation.
Many smaller companies in which the owner or an operations manager handle most day-to-day HR issues will employ an outside HR consultant for things like this, notes Kramer. The consultant can do the entire investigation, which also eliminates the concern about internal bias.