#MeToo – How to prevent sexual harassment claims and how to address them if they are made.

In the wake of the sexual harassment claims being raised in the entertainment industry, there has been a robust conversation about those women who feel as though they have been sexually harassed in the workplace. If you have been attentive to the social media trending hashtag of “#MeToo,” sexual harassment is pervasive and has affected women of all ages and in all sectors of the economy. Unfortunately, based on an experience I had as a young woman, I fall within the ranks of those using the hashtag. 

I was 20 years old and far away from home. I had just transferred to a college in the heart of Boston. I was already strapped with debt and knew that I was going to dig myself into an even deeper hole. I got a job at a very cool poster shop. It was called, “French Kisses.”  There were only two of us who were not European. The other American had gone to high school with Prince. I was enthralled by all of it. The owners and the employees were tragically hip with names like Pierre, Francoise, Dominique and Cristoph. They would kiss you on both cheeks when you walked in the door for your shift. The music they pumped in was the likes of Grace Jones. I thought this was the best job I had ever had.  Ultimately, not so much. 

I was working the closing shift one evening and going over the totals from the cash register with one of the owners. I had grown accustomed to his gregarious nature.  However that day, as I was showing him numbers, he moved his hand from my shoulder to the small of my back. He then moved it inside my sweater and around my waist. I did not know what to do and was terrified. I wanted to be anyplace but right there. Although I was ultimately able to extricate myself that time, I knew I needed to go back. I needed the job.  He was the boss. I was trapped and had no choice. I regret so many things about that job. However, I endured until I was able to find something else. 

Since that time, there have been several instances in recent history where our society’s attention goes to sexual harassment in the workplace. The confirmation of Supreme Court Justice Clarence Thomas; Bill Clinton/Monica Lewinsky; Bill Cosby; Donald Trump; and now Harvey Weinstein are merely a few examples of the high profile circumstances that brought sexual harassment back into the national dialogue.

While the ramifications of the entertainment industry scandals are becoming more apparent, as a business owner you should ensure that you know how to prevent sexual harassment within your business. Also, you should know how to respond should there be allegations of sexual harassment.

The United States Equal Employment Opportunity Commission (EEOC) defines sexual harassment as:

It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

There are a few things that should immediately jump out at you. The first is that the victim and harasser can be either a man or a woman. The second is that the EEOC directly states that simple teasing or offhand comments are not harassment. However, the EEOC does not give a great deal of guidance as to when teasing becomes a hostile work environment. That is purely subjective, based upon the experience of the alleged victim. Going back to my experience, perhaps the owners and my co-workers would not have found the actions hostile. I did, and that would be all that mattered. Finally, not only is an employer charged with maintaining a harassment-free environment from other employees, but also from clients or customers. 

The EEOC rules only affect your business if you have more than fifteen (15) employees. If you have fewer that fifteen employees, then the EEOC has no jurisdiction over complaints of harassment. However, in the current environment, it is reasonable to expect that there will be additional avenues for employees to claim harassment.

Regardless of the size of your business, now that you have an idea of how sexual harassment is defined, how do you prevent it? If you say that you have a zero tolerance policy for sexual harassment, then you really have to mean it. You should include language in your employee handbook that states that such behavior is not tolerated. Additionally, you should have policies provided to your employees that state to whom they should report harassment. Furthermore, you should state that if the employee cannot report harassment to his/her immediate supervisor, there is a designated person within the organization to whom reports should be made.

Education of supervisory staff may be beneficial to ensure that your business creates an environment where it is communicated that sexual harassment, in any form, is not acceptable.  This can be in the form of reminders, seminars or general discussion.

Even if you take all preventative measures, you may find that there is still a claim of sexual harassment. The events of Hollywood exemplify exactly what you should NOT do. A series of settlements complete with Non-Disclosure Agreements (NDAs) may only set you up for further liability down the road. 

If an employee complains to his/her supervisor (please recall that a complaint may just as easily come from someone who is not actually harassed, but perceives that s/he is subject to a hostile work environment due to actions or inactions of other people), it is imperative that you fully investigate the complaint.  Also, please note that retaliation against someone who complains is the surest way to get sued.

Sometimes the articulation of a complaint, alone, may create a hostile work environment. You should tread carefully with the investigation and how you resolve the claim. Generally, you should have a lawyer involved and overseeing your process. This is particularly true if the complaint is against someone who holds a position of power or control over your organization.  Each claim should be fully vetted and documented. In the event that you have a Harvey Weinstein in your midst, it is preferable to address the claims early rather than later.

Ideally, you will be able to address a complaint internally. However, the employee (assuming you have more than fifteen employees) may bring a claim with the EEOC. If you receive a notice from the EEOC, you should immediately contact a lawyer to assist you in responding.  The matter before the EEOC can be resolved informally, or ultimately the claimant may receive a “Right to Sue Letter,” which enables him/her to file a law suit against your business in federal court. Once you are in court, depending on how you addressed the initial claim, you may be subject to a multitude of different types of damages, including punitive damages.

So how do you prevent liability? You create and maintain documents showing that you had a policy; you educated your team about the policy; you enforced the policy; you investigated when you thought the policy had been violated; and you took action if there was a finding from the investigation. Throughout your actions, you should have a lawyer on your side who reviews and assists with the enforcement of your policy.