Is it Time to Review Your Sexual Harassment Policies and Training?

The Harvey Weinstein Factor

The fall of Harvey Weinstein from Hollywood’s graces due to allegations of sexual harassment and sexual assault opened the door for many women in Hollywood to speak openly about sexual harassment and other improprieties in the movie industry. The open dialogue didn’t stop in Hollywood. Instead, the movement prompted a large social media campaign where individuals who have been victims of sexual harassment or sexual assault identified themselves by posting “Me Too” on their social media status.

Sexual harassment is generally divided into two categories. The first is unwelcome sexual conduct that is either an explicit or implicit term or condition of employment, such as offering an employee a promotion or pay increase for agreeing to sexual demands or terminating an employee who refuses a sexual advance. This is known as quid pro quo sexual harassment. In Harvey Weinstein’s case, he is accused of textbook quid pro quo sexual harassment by requesting sexual acts or favors from actresses and others in the entertainment industry in exchange for favorable treatment or roles.

The second form of sexual harassment is unwelcome sexual conduct that unreasonably interferes (on purpose or in effect) with an individual’s work performance or creates an intimidating, hostile, or offensive working environment. This is known as hostile or offensive work environment sexual harassment.

Harassing behavior can include sexual advances, requests for sexual favors, other verbal or physical conduct of a sexual nature, or offensive remarks about a person’s sex. While the recent reports out of Hollywood appear to primarily focus on sexual harassment directed at women, both men and women may be sexually harassed, and harassment can occur between members of the same sex.

As more individuals feel empowered to speak out against sexual harassment, employers may find this an appropriate time to re-evaluate their current sexual harassment policies and procedures and provide additional training for employees, managers, and supervisors. The following are best practices employers can implement to ensure compliance with sexual harassment laws and protect their workplace environment.

Update Employer Policies and Procedures

The EEOC recommends that sexual harassment policies and procedures include the following:

• An unequivocal statement that sexual harassment (or other harassment based on any protected characteristic) will not be tolerated.
  
• A clear, simple, and easy-to-understand description of what constitutes harassing behavior or conduct, including examples of the types of behaviors that are considered harassing.
  
• A description of the employer’s established reporting system, including all avenues for reporting (for example, to a direct supervisor, to a department head, or to human resources) and who can report incidents of harassment (such as the victim and any employees who observe harassing behavior).
• A statement that allegations will be investigated promptly and thoroughly through an impartial process and that individuals involved in the investigation (victim, witnesses, and/or the target of the complaint) as well as information gathered during the investigation will be kept confidential by the investigator(s) to the extent possible. You can send an employee home to change or groom. If an employee arrives at work dressed inappropriately or poorly groomed (employees with body odor issues could be a bigger problem in the hot summer months), be sure to discuss your concerns with the employee privately. Refer to your written policy and explain without judgment why the choice of dress or lack of grooming violates the policy. Allow the employee the option to return home or, if the employee does not live near the workplace, to leave work and shop for more appropriate attire. Follow the Fair Labor Standards Act (FLSA) rules for payment of time off that includes pay for exempt employees who worked any part of the workweek. If the employee is non-exempt, the FLSA does not require you to pay him or her for this time away from work. 
  
• Assurances that the employer will take immediate and proportionate corrective action if the investigation reveals sexual harassment has occurred.
• A statement that any individual who reports an incident of sexual harassment, either as a target or a witness, will be protected against retaliation from coworkers and supervisors or managers. If the individual does experience retaliation, the coworker, supervisor, or manager who retaliates will be disciplined appropriately.You can be flexible. If instituting casual Fridays or occasional breaks from your dress code would improve morale, consider doing so. Some employers offer the option of more casual dress on Fridays during the summer months. You can—and should—set standards for what is and is not appropriate on casual days and ask that employees consider their schedule when choosing their dress. Employees with an important client meeting, for example, may want to refrain from dressing too casually. 
  

Train, Train, Train

In the wake of the “Me Too” movement, employers may choose to provide employee and management training on updated policies and procedures or remedial training on current policies and procedures. The EEOC recommends using an interactive training program that is repeated and reinforced regularly and supported at the highest levels of the organization.
Sexual harassment training for employees should include the following:

• A description of illegal harassment and conduct, including examples tailored to the workplace. 
  
• Information about employees’ rights, responsibilities, and the process for reporting harassment that is experienced or observed.
  
• An outline of the consequences of engaging in harassing conduct.

Management and supervisor training should include all elements of employee training as well as methods for dealing with harassment, reporting harassment claims, assessing the employees they supervise for risk factors for harassment and the consequences for failing to address and report harassment.

All training should be specific to the employer’s written policies and procedures and encompass state training requirements or recommendations, if any. While only three states (California, Connecticut and Maine) require harassment training for supervisory personnel for private employers, other states mandate training for public sector employees and recommend harassment training for all employers.

Ensure an Effective Reporting and Investigation Process

It is incumbent upon employers to take any allegations of sexual harassment seriously and follow all policies and procedures for investigating the claims.

Another important element is to have an employee reporting process that is managed and staffed by representatives who are properly trained, take all reports seriously, and promptly and thoroughly respond to any reports of harassment. Employees should feel the environment is supportive and that they will be safe in making a report.

Having well trained, neutral, and objective investigators and a timely, well-documented investigation process is also critical. To the extent possible, the investigation should remain confidential, and involvement limited to those individuals needed to conduct a thorough investigation to gather all of the facts. Additionally, employers should implement mechanisms to ensure individuals who file reports of sexual harassment or provide information during the investigative process are not retaliated against and that individuals alleged to have engaged in harassment are not adversely treated while the investigation is pending.

Finally, employers should receive a final report of the investigation and have a communication strategy to deliver the determination to the parties that includes any potential sanctions imposed.

In conclusion, compliant sexual harassment policies and procedures, training, reporting, and investigative processes foster a safe and productive workplace and limit an employer’s exposure to sexual harassment allegations like those that are rocking Hollywood. Employers are encouraged to work with experienced advisors or counsel to ensure their policies, procedures, and training programs are compliant and to ensure investigations meet EEOC confidentiality and privacy requirements while not interfering with protected activities under the National Labor Relations Act.