Counsel’s Corner: Sexual Harassment

Disclaimer: This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation.

Sexual harassment is a form of discrimination prohibited under Title VII of the Civil Rights Act of 1964. Title VII does not expressly mention sexual harassment, but in 1986 the Supreme Court first recognized a sexual harassment claim. Additionally, many states expressly prohibit sexual harassment in the workplace. Heightened attention surrounding sexual harassment due to the #MeToo movement has raised the stakes for employers to get in front of this issue and to address sexual harassment concerns.

Best Practices for Preventing Sexual Harassment

Define the Term “Harassment”
The Equal Employment Opportunity Commission’s Select Task Force defined the term “harassment” as conduct that is:

  • “Unwelcome or offensive,”
  • Based on gender (or a protected class), and
  • Detrimental to an employee’s work performance, professional advancement, and/or mental health.
  • Certain conduct isn’t acceptable even though the conduct may not be unlawful.
  • Given the different definitions and uses of the term “harassment,” company management should be careful as to their communications in response to a complaint under the company’s policy.
  • Train managers to refrain from calling a complaint a “harassment” complaint or from concluding that an employee engaged in “harassment.”
  • If the company determines that improper or offensive conduct occurred:
    • document it as a violation of company policy, and
    • take proportional corrective action, as well as steps to ensure that no retaliation occurs.

Examine the Workplace Culture
Ensure the culture doesn’t serve as a breeding ground for unacceptable conduct.

  • Is there proactive leadership and commitment by top executives?
  • Are all employees treated with civility and respect?
  • Is profanity or crude conduct condoned?
  • Is management held accountable for their own conduct as well as the conduct of those persons they supervise?
  • Employees must be held accountable to comply with the stated EEO policies and commitment.
  • Executive leadership must send a clear message with its actions that offensive conduct in the workplace isn’t acceptable.

Review the Harassment Policy

  • Don’t dust off the employee handbook every few years, and then update it quickly; conduct a fresh evaluation of policies and processes.
  • Emphasize in the harassment (and social media) policies that the company’s EEO policies are equally applicable to an employee’s social media use.

Take Steps to Train Managers and Employees

  • Per the EEOC Special Task Force Report: “training is an essential component of an anti-harassment effort.”
  • Training should not simply focus on “legal compliance” and should not be a “canned, ‘one size fits all’” approach.
  • Engage live trainers who are “dynamic, engaging and have full command of the subject matter.”
  • Consider expanding the training to establish expectations of “civility and respect” in the workplace.
  • Ensure that employees will have ready access to your policies and complaint process.
  • Strongly consider making the policies available online and/or accessible from a mobile device.