Addressing Harassment In the Workplace: Employers Need To Act Now

Matt Lauer. Charlie Rose. Kevin Spacey. For the past several months, it seems like there is a new high-profile sexual harassment report in the news every day. While most employers do not employ public figures of the stature of the aforementioned individuals, it does not mean the need for effective anti-harassment policies and engaging training should be any less than those who do. Thus, there is no better time than now for employers to conduct a quality-assurance review.

A common thread running through this recent wave of harassment allegations is the timing. Many of the accusers have indicated they did not come forward earlier out of a fear of negative career implications. In order to deal with these concerns, effective policies and creative training should contain sufficient information to assure employees who have been victims of sexual or other types of harassment in the workplace that they can safely report the issue or occurrence.

What can employers include in policies and training to quell employees’ fear of reporting sexual harassment? To start, employees should know to whom they can report harassment. Because the harasser may be a supervisor, policies and training should spell out various options for employees to make reports. This should include the human resources department or, for smaller employers, an administrative designee or designees. Employers should also consider notifying employees that there is an open door policy to report any form of harassment to any supervisory-level employee. This may allow employees to speak about the harassment with someone with whom they are more comfortable reporting it. In turn, all supervisors need to be trained on what to do when they receive reports of harassment. This may also include bypassing the chain of command if necessary depending on the situation.  The fact is that supervisory notice is organizational notice and it all requires action.

What else should you do? Your policies and focused training should emphasize retaliation for a report of harassment is strictly prohibited. The reason for this is two-fold. First, it serves to provide an employee who has been a victim of harassment that she or he can report it without fear of reprisal. Second, it serves to deter other employees from taking any adverse action against the reporting employee or treating her or him differently post-report. The policy should be zero tolerance for retaliation and actions against those who violate the policy should be swift and deliberate.

One of the more hotly discussed issues today is confidentiality. At this juncture, from the reporting and investigative standpoint, confidentiality is essential to the extent possible. Employees should not fear their harassment report will become immediate office gossip. Thus, it should be clearly spelled out that the news of the harassment report will be kept on a need-to-know basis and all supervisors need to be trained accordingly, independent of the size of the organization.

There is no question that prompt and through investigations are essential for reports of harassment in the workplace. Immediately upon a report of harassment and prior to the conclusion of the investigation, the employer should separate the reporting employee from the accused harasser. Depending on the workplace, this may require a suspension or other removal of the harasser pending the conclusion of the investigation. The policy should detail the investigation process following a report. Although it might not be the best idea to allow employees who report harassment unfettered access to investigation reports, investigation results should be promptly communicated so the employee feels part of the process and knows her or his complaints are being taken seriously. The policy should detail that substantiated allegations of harassment will be dealt with immediately and all form of discipline, including termination is an option notwithstanding any separate policy for progressive discipline.

Employers need to ease the path for employees to come forward with reports of sexual harassment, but policies and effective training to create a harassment-free work environment is equally or more important. Training for supervisors is essential. Supervisors are in a unique position and even if they came up through the ranks each one must understand the power they exert over subordinates which can lead to acquiescence of unwanted advances—both during and after work hours.

Effective anti-harassment policies and customized training are also important in terms of liability. Both the United States Supreme Court and the New Jersey Supreme Court have recognized an affirmative defense for employers defending harassment lawsuits if an employee fails to take advantage of the reporting process outlined in an effective anti-harassment policy prior to filing suit or if the employee reported harassment pursuant to the policy and it had its intended effect. One of the ways a harassment process is communicated to everyone is through training that is customized for a particular employer which reminds all employees of the issues that exist and what to do should a situation arise.

In short, the importance of anti-harassment policies and training for all employers cannot be understated, especially in recent times. Although implementation of policies and engaging training is not a 100% guarantee that harassment will not occur in the workplace, they can deter harassment, provide employees who have been victims of harassment a smooth path to come forward with reports, and limit liability for employers in certain scenarios.

If you require assistance revising or promulgating an anti-harassment policy, implementing a customized training program, or have any questions regarding actions that your organization can take, do not hesitate to contact our office.

By: Benjamin S. Teris, Esquire
Associate at Brown & Connery, LLP