By Norma Zeitler
Before becoming a lawyer, I was a Captain in the U.S. Army. I was stationed overseas for much of my career and served a remote tour in a far-away land during Desert Shield and Desert Storm. During that tour of duty, I learned many things. But the most important lesson I learned – as one of two female officers on the base – was to speak up (and out)
against sexual harassment.
I have always been thankful that I was in a position where speaking up (and out) was OK. But that has not been the case for countless women (and some men) – many of whom are now speaking up (and out) after many years of silence. Now that the court of public opinion has finally decided that sexual harassment is not OK – as evidenced by the public condemnation of the powerful men who have been accused of such conduct – it stands to reason that there will be an uptick in sexual harassment complaints in the workplace.
Thus, a quick reminder on an employer’s obligations to prevent sexual harassment is in order. But before an employer can prevent sexual harassment, the employer must first understand what it is. Sexual harassment is quite simply harassment based on sex. There are two types of sexual harassment: quid pro quo harassment and hostile work environment harassment. Quid pro quo harassment literally means “this for that” – if you have sex with me, I will promote you. Hostile work environment harassment is more subtle – it is any conduct that is (1) based on sex (or is of a sexual nature), (2) unwelcome, and (3) unreasonably interferes with the victim’s work performance or creates an intimidating, hostile, or offensive work environment. The key to both quid pro quo harassment and hostile environment harassment is that the conduct must be unwelcome. In other words, conduct that is truly consensual is not unlawful harassment.
But, what I can tell you from years of litigating this issue is that whether the conduct was welcome (or not) is almost always a hotly contested issue. Thus, in addition to understanding what sexual harassment is, it also is important to understand what duty an employer has to prevent unlawful harassment. Under applicable federal, state and local discrimination laws, it is the employer’s obligation to have a policy in place that prohibits harassment, a complaint mechanism, and to take prompt and effective remedial action when it receives a complaint of harassment. The focus of this article is what an employer must do to put in place an effective policy.
In 2016, we received clear guidance from the Equal Employment Opportunity Commission (EEOC) on what employers should include in an anti-harassment policy. See Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace, June 2016, at 80 (https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf).
In fact, the Report includes a checklist of elements to include in an anti-harassment policy. These elements include the following:
- A clear statement that harassment will not be tolerated: This statement should come from the top, and it should make clear that the company prohibits all types of harassment.
- An easy-to-understand, non-exhaustive list of prohibited conduct: Everyone knows (or should know) that it is unlawful to condition a job benefit or a job detriment on sex. While an example of that type of conduct certainly should be included, the goal here is to include less obvious conduct, such as repeatedly asking someone out (after being told no), telling sexually inappropriate jokes, or making sexually inappropriate comments to (or about) a co-worker on social media.
- A reporting system that provides multiple reporting avenues: This increases the likelihood that the harassment will be reported. It is essential, however, that each person responsible for receiving such reports (for example, supervisors) be trained on their responsibilities under the policy.
- Assurance that the company will undertake a prompt, thorough, and impartial investigation: This will be judged in hindsight if an employee sues for sexual harassment. All too often, juries conclude that employers did not do enough, or did not act quickly enough. Thus, it is imperative that employers without experience in conducting these types of investigations seek help from experienced professionals.
- An assurance that the matter will be handled as confidentially as possible: Please note that it is improper to promise complete confidentiality because to conduct a proper investigation, the alleged harasser should be given an opportunity to respond to the allegations (albeit without the investigator disclosing the names of the witnesses). In addition, there often is a duty to disclose the details of the investigation (for example, to a higher level manager or the Board).
- An assurance that the employer will take immediate and proportionate corrective action if it determines that harassment has occurred: Not only should an employer include this assurance in the policy, but the employer must, in fact, do this once the employer becomes aware of harassment. It is important to understand that the effectiveness of the corrective action also will be judged with the benefit of hindsight.
- A prohibition against retaliation: Each of the discrimination laws prohibits retaliation, and the reason is simple – if an employee fears retaliation, harassment will not be reported.
- Is written using simple words, in a language understood by members of the workforce: It is the employer’s obligation to show when defending against harassment claims that it had a policy, that employees were aware of the policy, and that the employee unreasonably failed to take advantage of the policy. An employer cannot meet this burden if its employees did not understand the policy.
Developing an effective harassment policy is relatively easy, especially with the help of an experienced Human Resources attorney. Taking prompt and effective action once a report of harassment is received is an entirely different matter – but taking such action is critical to creating an inclusive work environment (and to defending against a harassment claim). Stay tuned for the next article to learn how.
Norma Zeitler is an attorney and partner in the Chicago office of Barnes and Thornburg LLP. The firm serves as NWFA’s legal counsel. For more than two decades, Norma has counseled clients on a variety of employment law matters and litigated employment law cases. She can be reached at firstname.lastname@example.org or 312.214.8312.