Sexual Harassment Policies

When an employer gets sued for sexual harassment, the focus is not on what the alleged harasser did. It’s on what the employer did to provide its employees a harassment-free work environment. This includes both steps taken before anyone complains and steps taken in response to the complaint. So if your goal is to prevent your company getting sued for harassment, there are 12 steps you can (and should) take now. In fact, California law requires these things be present in all harassment policies.

  1. List all the categories currently protected under the Fair Employment and Housing Act, i.e., race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military or veteran status.
  2. State that the policy prohibits harassment by co-workers, supervisors, managers, and third parties with whom the employee comes into contact. (That’s basically everyone, isn’t it?)
  3. Provide confidentiality, to the extent possible, for complaints.
  4. Promise timeliness. This is a point of emphasis. The regulations require “a timely response,” “timely investigations,” and “timely closures.”
  5. State that investigations will be impartial and conducted by qualified personnel.
  6. State that investigations will be documented and tracked for reasonable progress.
  7. Provide “appropriate options for remedial actions and resolutions.”
  8. Designate personnel to receive complaints, while stating that employees are not required to complain to their immediate supervisors.
  9. Instruct supervisors whom to direct complaints to. Don’t let them investigate on their own, unless they’re trained to do so.
  10. Indicate that the employer will conduct a fair, timely (there’s that word again!), and thorough investigation that provides all parties with appropriate due process and reaches a reasonable conclusion based on the evidence.
  11. Indicate that, if misconduct is found, the employer will take appropriate remedial measures.
  12. Prohibit retaliation.

Perhaps you’ve noticed that harassment claims have been in the news a lot lately. The first line of defense is having a compliant policy in place. Not allowing your employees to ever interact with customers, supervisors, vendors, or each other may also be effective, but that doesn’t seem to work for many businesses.

 

Koko the Gorilla, who turned 46 last month, has quite a following. Much of that has to do with the fact that she purportedly has a vocabulary of over 1000 words that she communicates through sign language. If this were a blog about linguistics, primate behavior, or how the Planet of the Apes movies are a cautionary tale about future inter-species conflict, we’d delve into that further. But it’s not. So let’s talk about another thing Koko is famous for.

Koko is the only western lowland gorilla to be accused of sexual harassment. In 2005, two women working for the Gorilla Foundation in Woodside, CA (southwest of Redwood City) sued claiming that the president of the Foundation pressured them to expose their breasts to Koko. According to the lawsuit, which settled for undisclosed terms:

“On at least two incidents in mid-to-late June 2004, Patterson intensely pressured Keller to expose herself to Koko while they were working outside where other employees could potentially view Keller’s naked body. … On one such occasion, Patterson said, ‘Koko, you see my nipples all the time. You are probably bored with my nipples. You need to see new nipples. I will turn my back so Kendra can show you her nipples.'”

Both women further allege that they declined to “indulge Koko’s nipple fetish.” If this were a blog about gorilla’s sexual predilections, we’d delve into that deeper. But it most assuredly, is not. It’s about California Employment Law. We make that pretty clear at the top of the page. So what does any of this have to do with California employment law?

For employers, preventing harassment requires more than just controlling their employees. Companies can also be liable for harassment of their employees by third parties if the company fails to take prompt and effective measures to address the harassment. Employers can’t necessarily control the behavior of customers, clients, vendors, contractors, and everyone else their employees interact with in their work. But if you’re an employer, you should take these steps:

  1. California regulations require that a company’s sexual harassment policy prohibit harassment by co-workers, supervisors, managers, and third parties with whom the employee comes into contact. So ensure that your harassment policy contains that language.
  2. Ensure that your harassment policy directs employees whom to complain to if they are subjected to harassing behavior by third parties.
  3. Train your supervisors to notify human resources immediately if these issues come to their attention.
  4. If issues of third-party harassment arise, make sure that the company conducts a prompt and thorough investigation.
  5. If the facts developed in the investigation warrant, take prompt remedial action that is reasonable to prevent the situation from recurring.
12506543 – western lowland gorilla portrait (gorilla gorilla gorilla) captive. national zoo. washington dc, usa.

This last step can be complicated. You can’t necessarily counsel or discipline third parties the way you can with employees. In extreme cases, companies have even had to fire clients who refuse to treat the companies’ workers appropriately. Fortunately, that’s just in extreme cases — where the clients insist on behaving like gorillas.

 

 

A year ago, I wrote about a report from an EEOC Task Force on risk factors for workplace harassment. Well the Select Task Force on the Study of Harassment in the Workplace continues studying away and has issued some new materials. They consist of:

Takeaway No. 1: It’s a point I’ve been making for years and will keep making. If your company gets sued for harassment, the case will be less about what the harasser did than about what the company did to prevent and respond to the situation. As the law gets more exacting on what it expects from employers, it’s critical to have qualified legal counsel guide you through this process.

Takeaway No. 2: There is such a thing as researchers who evaluate organizations’ holistic workplace harassment prevention efforts!

When you read about sexual harassment claims, the focus is on what the alleged harasser is accused of doing. The sordid details are what attract readers. The Marchuk v. Faruqi & Faruqi case is one recent example.

But in the real world of harassment litigation, the focus is on what the employer did. That’s because the plaintiffs and their attorneys don’t just want a verdict against the usually shallow-pocket individual defendant. They want a verdict against the usually deep-pocket employer. To get that, they need to show that the employer didn’t take the issue seriously.

The time to start preparing to defend these claims is before they’re brought. And you can start by answering these questions:

  1. How current is the company’s policy against harassment? Does it recognize the breadth of activity that can constitute harassment? Does it list the various protected categories and provide multiple avenues for employees to raise concerns?
  2. Can employees find the policy easily? Better yet, have they signed a form acknowledging receipt of the policy (or the handbook containing it).
  3. Have managers received the bi-annual harassment training mandated by California law?
  4. Do managers behave appropriately? Legally, the actions of managers and supervisors are deemed actions of the company. If there were instances where managers didn’t behave appropriately, have the issues been addressed in a way that is reasonably calculated to prevent them from recurring?
  5. When managers observe inappropriate behavior at work, do they respond effectively? A manager turning a blind eye to bad behavior will be portrayed as the company condoning it.
  6. Has your company identified a qualified investigator to evaluate harassment complaints? You want someone who’s far enough from the situation to be impartial, who has experience investigating these types of issues, and who understands how to question witnesses.

How your company responds when it receives a harassment complaint remains critically important. But there are steps employers need to take before that point to show that they’re serious about providing a harassment-free workplace.

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

There’s a sex harassment case playing out in federal court in New York – Marchuk v. Faruqi & Faruqi LLP –  that’s been getting a lot of attention. The allegations involve a law firm partner forcing himself on an associate after a holiday party. Law360 (subscription) provides daily updates. While there are enough sordid details to fill 10 blog posts, I want to focus on a less salacious issue that arose last week.

Plaintiff is arguing – as harassment plaintiffs invariably do – that the employer didn’t take its obligation to provide a harassment-free workplace seriously. As an example, one of the founders would jokingly exclaim “Handbook!” when someone told a dirty joke. Based on this, the plaintiffs’ attorneys argue that “the handbook at the firm was a joke” and people knew they could violate the harassment policy without consequence.

I can certainly imagine situations where reminding employees of a policy is an effective response to off-color comments. But if that doesn’t get the message across, employers need to be prepared to do more. How managers react to violations can be critical evidence for a jury in determining whether, despite handbook language to the contrary, bad behavior is implicitly tolerated.

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

Takeaways:

  1. Harassment litigation is less about what the harasser did than about what the company did. When you see a large verdict against an employer, it’s because the plaintiff was able to convince a jury the company didn’t take the issues seriously.
  2. Having updated policies in place is an important first step. But if managers disregard the policies (by word or deed), the policies won’t do you much good. What your managers say (and  how they act) is going to carry more weight than what the policies say. Harassment training is a good way to inform managers what you expect from them.