With the high-profile sexual harassment #MeToo movement
it is a good idea to develop your employer’s plan. The movement features women
posting #MeToo on social media, or in high profile TV spots, to indicate they
were sexually harassed at some point in their lives. The goal of this hashtag
is to draw attention to the magnitude of these previously unreported problems.
Sexual harassment in the workplace is unlawful under
Title VII. However, being a “total jerk” or “just creepy” is not itself illegal
or actionable unless that supervisor, manager, Hollywood producer, is just a
total jerk or just creepy to women only. A #MeToo message implies that her boss
may have sexually harassed her which may put your organization at risk.
Now that you, wearing your employer hat, have seen the
post, what comes next? Bury your head in the sand? Ignore it? Or Be Proactive?
Take action today like Speaker Ryan to nip it in the bud?
First Question: What does your Anti-Harassment Policy
say?
Anti-harassment policies should include specific
reporting mechanisms for employees who believe they have been subjected to
unlawful harassment or discrimination. There should be two distinct reporting
procedures such as call 1-800 number, or contact a specific HR representative
or specified high ranking company official by title. Make sure you are specific
to debunk a report that never was made. Once a complaint is submitted, the
policy should provide for a prompt contact back to the employee (within 48 hours)
and then a thorough (legally defensible) investigation into the allegations.
There is much more I could say on the legally defensible stuff but you get the
point.
But I have never
included in a policy for one of my employer clients that has a “vague post on a
social network” as a designated reporting. Most “put their head in the sand”
employers might take the position that “no report was made” and thus no duty to
investigate. And there is in fact an affirmative defense in the law to the
claims in cases involving harassment by a supervisor that does not involve a tangible employment action if
it can show that: (1) it took reasonable steps to “prevent and correct promptly
any sexually harassing behavior;” and (2) the plaintiff-employee “unreasonably
failed to take advantage of any preventative or corrective opportunities
provided by the employer or to avoid harm otherwise – employer published a
policy with training.”
The Better Approach is to Seize a Teachable Moment
In addition to potential harassment claims, EEOC Charges,
Lawsuits, totally distracted workforce, the #MeToo post reveals that your
employees might benefit from anti-harassment training. Employers should strive
to ensure that employees understand its anti-harassment and anti-discrimination
policies and reporting procedures, as well as its commitment to preventing and
correcting unlawful behavior in the workplace. The best way to do that is video
training, smartphone is OK, with a request for all employees to again sign the
policy. Also, great time to update your policy with a workplace civility
anti-bulling policy as well. Employer training should not be focused solely on
avoiding liability but also should be designed to proactively eliminate
harassing and disrespectful conduct, and create a workplace environment where
it is all about respect. In fact, let’s start a #MeTooItsAllAboutRespect
movement!
Tommy Eden is a partner working out of the Constangy,
Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA He
can be contacted at teden@constangy.com
or 334-246-2901. Blog at www.alabamaatwork.com
