November 29, 2017

At a time of year when people are usually talking about holiday shopping and New Year’s plans, a different (and not so festive) topic of discussion has taken over the conversation, both at the water cooler and at family gatherings: the issue of harassment in what some call the “Weinstein era.” Each and every day, individuals are coming forward with startling allegations of sexual assault and harassment against well-known individuals, including executives, elected officials, and entertainment and media personalities. This increased attention has led to the “#MeToo” movement, in which droves of individuals have begun sharing their stories of harassment on social media. 

Indeed, just hours before we published this article, news broke that Matt Lauer has been ousted by NBC after a 20-year career. It is difficult to ascertain from news accounts thus far whether the allegations were investigated by his employer and determined to be well-founded, or whether Lauer was fired based on the allegations alone.

The bottom line: We are witnessing a “sea change moment,” the result of which is that sexual harassment will likely never again be viewed in the same way. Individuals who feel that they are being harassed, as well as bystanders who observe harassment, are coming forward more than ever before. Alleged harassers, and businesses accused of allowing harassment to occur or failing to stop it, already are being punished in the court of public opinion, well before allegations are brought or adjudicated by judge or jury. This change in thinking—and its ongoing effects on the procedures used to prevent harassment, address claims, and protect the rights of accusers and the accused—means that smart businesses need to have a more rigorous plan for maintaining a harassment-free workplace and for appropriately addressing allegations of harassment should they arise (whether that involves a written warning, termination of employment, or action somewhere in the middle of that broad spectrum). They must use this opportunity to thoroughly review their harassment compliance programs with a critical eye.

Harassment in the workplace can lead to diminished employee productivity, employee attrition, and poor morale. It also can lead to significant liability for employers that do not use their best efforts to prevent harassment from occurring and/or do not properly address allegations of harassment brought to the surface. Taking steps to educate employees from top to bottom, as well as promptly responding to allegations of harassment, not only can thwart harassment from occurring but also can bar or minimize liability for an employer if—despite the employer’s diligent efforts—harassment does occur. 

To avoid becoming the next harassment headline, we recommend the following steps for every employer:

  • Expressly commit to maintaining a harassment-free workplace.
  • Review your anti-harassment policy to ensure that it is up to date and compliant with developments in the law.
  • Distribute and post your anti-harassment policy.
  • Conduct harassment compliance training for all employees, including all employees with supervisory responsibilities, as well as the highest levels of leadership. 
  • Become knowledgeable of state-specific laws regarding harassment compliance programs. (As just two examples, Connecticut and California have strict laws regarding harassment compliance training.)
  • Learn how to properly investigate and respond to allegations of harassment. 
  • If, following an investigation, allegations of harassment are well-founded, implement prompt and appropriate remedial action designed to stop the harassment and prevent it from recurring.
  • Understand that determining appropriate remedial action depends on a variety of factors, including the nature and gravity of the offense.
  • Expressly condemn retaliation against anyone who voices a good-faith complaint of harassment or participates in an investigation.

Taking these precautionary measures now can save employers hundreds of thousands of dollars in lost productivity, damage to reputation, and the time and expense of litigation down the road. 

Our attorneys regularly assist employers in developing, implementing, and enforcing harassment prevention programs, drafting anti-harassment policies, providing harassment compliance training, advising on responding to harassment allegations, conducting harassment investigations, and defending harassment-related claims. For additional information or assistance with your harassment compliance program, please contact your Much Shelist attorney.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.