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?

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.”

Helping handbook

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.



Responding to harassment reports

Once again, Kramer says having a strong harassment policy in place is key to responding properly when harassment is reported.

Smaller companies should consider making an employee assistance program, HR consultant, or other outside third party available to receive employee complaints of sexual harassment. Too often in smaller companies, the person to whom the employee is supposed to bring the complaint is the harasser.

“Act swiftly,” says Kramer. “Don’t let conduct continue once you become aware of it, and don’t be afraid to get rid of bad apples. If you have a higher-level employee who has developed a reputation for conduct that borders on harassment, don’t keep him around just because he is a good producer, or makes the company money. He could lose the company money — a lot of money — if his conduct leads to claims of sexual harassment, followed by lawsuits.

“Additionally, make sure the decision-makers in your company understand what retaliation is and take it seriously,” Kramer adds. “A victim of sexual harassment often keeps quiet out of fear of retaliation — that the accuser will be cut loose rather than the accused. The law is designed to protect a victim in that case, making that retaliation illegal.”

One important thing to note is that, in a retaliation case, the underlying sexual harassment need not be proven, says Kramer. If a terminated employee can prove that the employer terminated employment because she made a claim of sexual harassment in the workplace, that termination is illegal retaliation, regardless of whether the underlying sexual harassment has been proven.

“The law protects employees from opposing discrimination or harassment in the workplace,” Kramer notes. “The opposition itself is the focus. Of course, if you find yourself with an employee making up stories left and right, then you have a different issue, and need to determine how to address employee honesty and whether something is motivating that employee to lie.”

Getting proactive

Another result from the wave of victims of sexual misconduct coming forward are companies and other organizations are taking steps to head future harassment off at the pass by holding training sessions for employees on what to look for and how to act in the workplace.

Such seminars and training can have great value and go a long way toward protecting the employer from liability, and fostering a harassment-free workplace, if properly used, notes Kramer.

“If companies are going to go to the trouble to offer such training sessions, they should require attendance at such sessions and incentivize actually listening and participating,” she advises. “This may mean disciplining an employee who fails to attend, having follow-up discussions in smaller groups about the content of the session, and even having a written quiz following the session. In order to make such seminars really count, I recommend hiring an outside expert to come in and provide the training — usually an HR professional or an attorney.”

In addition to covering what actually constitutes harassment under the law and what the company’s policy is, employers should consider tools that may hold the attention of the attendees better, such as making analogies between the facts underlying hot news stories with a situation that could actually happen in a “normal” workplace, or bringing in actors to do roleplaying to demonstrate how comments and conduct can easily be misconstrued and cause a situation to spiral downward quickly. However, do NOT use anyone from inside the company for roleplaying, says Kramer.

Alternatively, there may be videos available online that demonstrate scenarios. Employers wishing to save money by going this route should verify the veracity of any video and its source, to ensure it considers the proper applicable laws.

Final thoughts

Apart from the language of the actual anti-harassment policy itself, it’s vitally important for employers to promote professionalism and respect in company policies, both in practice and in the type of behavior they reward.

“Being an employer is not unlike being a parent in that way — reward the behaviors you want to see,” says Kramer. “Further, hire and train managers that see their positions of authority as authority over the subject matter of the work — not over the individuals. Yes, a manager supervises people, but the manager supervises people doing the work, and supervisors exist to ensure that work gets completed consistent with the company’s objectives. Again, if you have a manager that is wielding her power in an inappropriate way, that is a red flag and should be handled swiftly.”

Another piece of practical advice, says Kramer: Pay attention to your employees. When in a large meeting room full of men and women, and the woman speaking makes an off-handed comment that strikes you as sexist, look at the faces of the men in the room, particularly the young men or those that are newer to the company. Do they look uncomfortable?

You may even consider bringing in a consultant — one with expertise in reading body language — to make some observations in a few different settings in your company.

“People are often afraid, or just don’t want to take the time, to go into the boss’s office and say, ‘I want to talk to you about what so-and-so said. It made me uncomfortable,’” sys Kramer. “But their actions, body language, and facial expressions may give you insight into whether you may have a problem brewing.”

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