United States: #MeToo And Time's Up: The Focus On Sexual Harassment In The Workplace

In the wake of the #MeToo and "Time's Up" movements sweeping the country, sexual harassment complaints in the workplace are being brought to light at alarming rates across every industry. While high profile examples like Harvey Weinstein set the public sentiment ablaze, it is the smaller incidents of workplace harassment that plague employers. These important movements to expose and eradicate sexual harassment mean more to employers than just an increase in complaints; the cultural paradigm shift on this issue raises the stakes in terms of reputation and impacts on the bottom-line. So what are an employer's obligations, and how can an employer best meet these obligations so that employees and the business are safe from the damaging effects of harassment?

The EEOC's enforcement standard is that employers are required to take reasonable steps to prevent and stop harassment. Many employers are meeting this obligation in innovative ways that go beyond well-crafted equal employment opportunity and anti-harassment policies. Employers have had success with implementing anonymous "hotlines" for victims of sexual harassment to use to report incidents. This approach benefits employees by removing the stigma of complaining and ensures the complaint goes through the proper channels instead of potentially being left unreported by a supervisor. In keeping with technological advancements and to cater to a workforce that is connected to their smartphones, other employers are using an app as their complaint and reporting method. However, hotlines and apps do not make sense for every business, and that is where training becomes so important. As the EEOC points out, harassment training has not stopped harassment since training became the norm for many companies decades ago. This is due in part to employers focusing their training efforts on preventing liability rather than preventing the harassment itself. To actually prevent harassment, employers need a fresh approach to training that goes beyond policy and addresses the environment and work culture in which harassment occurs.

While the EEOC only recommends an anti-harassment policy and training as reasonable steps to prevent harassment, both have become increasingly the norm for employers wishing to avoid incidents of harassment. California has the most extensive sexual harassment training requirements in the country. As of this year, employers operating in the state must now address the topics of sexual orientation, gender, and gender identity as a part of harassment training. 

Currently, only California, Maine, and Connecticut mandate harassment training, but that is likely to change as more states are swept up in the rising tide of anti-harassment sentiment (New Jersey case law indicates that harassment training is part of an affirmative defense to employee claims and failure to train can be evidence of negligence by the employer). Many other states encourage training, but do not impose it as a requirement. Already in January, New York legislators have introduced a bill to mandate harassment training in the private sector, and similar legislation has been introduced for public employees and state contractors in Florida. States and cities across the nation are increasing harassment prevention training requirements for their legislators and employees, and even Congress is implementing mandatory training for its members.

Those states that do not have a training requirement leave it to employers to discern how best to prevent sexual harassment in their workplaces. This may seem like a positive for businesses, but in reality – the lack of guidance can spell trouble if a company's preventive measures are inadequate to prevent harassment. That's why it is imperative that every business seek counsel on how best to address and prevent sexual harassment in their workplaces.

Given the current environment, it is more important than ever to have well-crafted sexual harassment policies backed up by training resources which actually engage employees to prevent future harassment. Crafting materials that comply with regulatory requirements at every level of government – including local, state, and federal law – is increasingly difficult. Having a team of qualified experts who can address the specific needs of each employer in preventing harassment ensures a one-size fits all policy doesn't land the employer in hot water. Training should be engaging and interactive with upper management's buy-in and participation; visibility and support are paramount. It is incredibly important that managers and supervisors are instructed to report any and all incidents of harassment, as many of the worst examples we are witnessing today resulted from attempts to cover up the incident. Companies wishing to avoid potential liability must ask themselves, "How can we communicate to employees that their voice will be heard?"

Every employer needs safeguards in place to prevent and, if necessary, rectify instances of harassment. Lewis Brisbois has a number of attorneys dedicated to crafting sexual harassment policies which are tailored to a company's structure and industry and implementing preventive measures such as anonymous hotlines and employee/management training. Our team has experience helping companies implement anti-harassment policies and training management on how to respond to employee allegations so, no matter the context, an employee feels comfortable resolving the issue internally. Lewis Brisbois stands ready to help clients protect themselves and their employees by providing harassment resources which preserve confidentiality, foster a sense of safety within the company, and prevent harassment from occurring in the first place.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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