As all of you know, today’s headlines have been dominated by stories of sexual harassment. Last year, Bill Cosby and Donald Trump got most of the press, as did the decades-old charges against Bill Clinton. This year, we have heard about complaints made against Harvey Weinstein, Bill O’Reilly, Roger Ailes, Kevin Spacey, Louis C.K., Roy Moore and others. The list grows day by day.
Not all of these claims took place in a workplace setting, but many of them did. Some of you may remember back in 1991 when sexual harassment in the workplace first became mainstream news. I can still recall when Anita Hill accused Clarence Thomas, her former boss (and nominee to the United States Supreme Court), of sexually harassing her while the two worked together: asking her out on dates even after she repeatedly refused, discussing sex in the work place, commenting on his own sexual prowess, etc. After the hearings on Justice Thomas’ confirmation, lawyers like me first began seeing a slew of sexual harassment lawsuits brought against our employer clients. In fact, I eventually became an employment lawyer exclusively because I had to learn how to defend these lawsuits, which had never before been handled by any of the lawyers in the large, litigation-driven firm where I was then working.
Over the years, employers – especially those who were sued and paid big-time attorneys’ fees and settlements – got smarter. They developed anti-harassment policies, they trained their managers and employees, they hired sophisticated human resources managers to nip these claims in the bud and some even procured employer practices liability insurance (EPLI) coverage. These actions, as well as the Supreme Court’s holding in Faragher v. City of Boca Raton case (which limited an employer’s liability for a supervisor who engages in sexual harassment at work), have made lawsuits for sexual harassment a rarity these days.
Although these lawsuits no longer dominate my caseload, the tide could easily change with the new wave of sexual harassment claims in today’s headlines. It will not be long before the person behind the “Me Too” post on Facebook brings a sexual harassment claim against her employer (note that individual harassers are not personally liable under applicable employment laws such as the Florida and federal civil rights acts; the employer bears sole responsibility). Accordingly, my advice to smart employers is to be proactive today, and I have two key recommendations for how to do so:
First, all employers need to review their existing sexual harassment policies (or, heaven forbid, hire an employment attorney to draft one if you do not have a policy). Make sure the policy clearly defines and prohibits any form of sexual harassment in the work place and describes a procedure for making complaints of harassment, including designating alternate persons to whom such complaints can be reported. Although it should go without saying, the policy must be followed by the employer and must not be pure window dressing. Complaints should be taken seriously, investigated and resolved and, if the complaint has merit, the offending employee should be disciplined.
Second, all employers should train managers and employees on the policy. Many employers have new hires simultaneously sign off on receipt of their handbook and sexual harassment policy without specifically training employees about recognizing, addressing and reporting sexual harassment in the work place. And other employers wrongly assume that managers should know what to do if they see or are presented with a harassment complaint. Employment attorneys and human resources consultants offer such training services, as do employee leasing companies; some EPLI providers may offer these services as well. An investment in training goes a long way in establishing a harassment- free work place, and the costs of training are far less than those that may be incurred defending a lawsuit.
The old saying goes, “An ounce of prevention is worth a pound of cure.” If your business is ever forced to defend a sexual harassment claim, you will be in a better position to defend such claim by following the guidance above. If I can assist you in any way, please call or email. Ellen M. Leibovitch