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Sexual Harassment: A Few Words of Advice in the Wake of Weinstein, Spacey, and the Media Frenzy

Over the past few weeks, we have seen, heard and read alot about allegations of sexual harassment against Harvey Weinstein, Kevin Spacey, Mark Halperin, and a number of other high-profile media  and entertainment personalities.  In most of these cases, the allegations involve claims of non-consensual sexual contact, sometimes even rising to the level of rape.  With each day, it seems that more accusers surface, and a Twitter hashtag (“#MeToo”) posted by Hollywood actor Alyssa Milan  has reportedly been “flooded” with messages from mostly women claiming to have been victims of sexual assault and harassment.

Thirty-one years after the United States Supreme Court, in Meritor Savings Bank v. Vinson,  recognized sexual harassment as a violation of Title VII of Civil Rights Act of 1964, it should come as no surprise that non-consensual sexual advances in the workplace are illegal. If true, the conduct these men engaged in is reprehensible, and such behavior should result in the termination of employment relationships and other contractual arrangements.   However, as is often the case, there has been something of a “mob mentality” as companies try to show how intolerant they are of workplace harassment.

Some of the articles I have read have called for employers to implement policies that provide for the immediate termination of any one found to have committed an act of sexual harassment.  Others have called for employers to impose a rule that anyone accused of harassment be suspended and warned that he or she will be fired if they discuss the allegations against them  with anyone who may be a witness.   I strongly disagree with both of these admonitions, and thought  this might be a good time to offer five practical pointers on how to address the issue of sexual harassment in the workplace.

  1. Make sure you have a written workplace harassment policy that is widely available to employees via a handbook, intranet, free-standing document, or all three.
  2. Conduct periodic workplace harassment training. Do this in person  (via Skype for  remote attendees is fine) if possible.  Distribute the policy at the training, and have people confirm their attendance.
  3. Investigate all claims of workplace harassment as quickly as is possible. Time is your enemy, as memories fade, emails and texts get deleted, social media posts are taken down,  and witnesses talk to one another.
  4. Encourage people to be discrete, but, under current NLRB law, it is illegal to impose a blanket rule requiring that persons involved in the investigation not talk to others. Before  putting such a “gag order” on the parties and witnesses, an employer must be able to show that it has objective evidence supporting  concerns that witnesses need protection, testimony may be fabricated, evidence may be destroyed, or there is the likelihood of a coverup.  The NLRB’s view has been questioned by appellate courts and very well may change under the Trump NLRB, but, at least for now, its the law of the land.
  5. Do not have a “zero tolerance” policy that calls for the termination of all “sexual harassers.”  Sexual harassment  encompasses a broad array of behavior, ranging from comments about clothing to demands for sexual favors. While it is clearly appropriate to fire a manager who demands that a subordinate have sex with him to get a raise, it is probably not appropriate to fire a long-term employee who refers to female coworkers as “sweetie” or “babe.” Evaluate claims of sexual harassment on a case-by-case basis, taking into account the seriousness of the allegations, the strength of the evidence against the accused, and whether or not the accused has a past history of inappropriate behavior.

When the dust settles, I think the Harvey Weinstein allegations will be good for workplaces, as they will serve as a reminder that treating your co-workers and subordinates as chattel who are there to satisfy sexual needs can and should get you fired.  However, “one size fits all” solutions rarely work very well, and addressing harassment claims on an individualized basis is a far better approach to removing this scourge from the workplace.

 

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