Unless you’ve been living under a rock recently, you’ve undoubtedly heard about the Harvey Weinstein sexual harassment and assault scandal shaking Hollywood; it’s everywhere. Nearly every week since the scandal broke, additional accusers have come forward with their stories and interactions with him or other high-powered Hollywood executives.
From an employment law perspective, one surprising aspect of the ordeal is the contract Harvey Weinstein supposedly had with The Weinstein Company, as reported by multiple media outlets. Those stories suggest that the company entered into a contract with him where he was essentially allowed to harass individuals without fear of reprisal, so long as he personally reimbursed any settlement or judgment amounts paid by the company as well as paid a penalty to the company that increased with each incident.
If those stories are accurate, those contract provisions do not bode well for the company’s liability in civil suits from the alleged victims and former employees who have alleged sexual harassment. Turning a blind eye toward harassment is a good way to expose a company to liability, as well as damage the company’s public image and reputation. Instead, employers should follow these best practices to reduce liability and more importantly, reduce the possibility of sexual harassment in the workplace.
Have a Policy in Place
In this day and age, employers would be remiss to not have a policy prohibiting sexual harassment on the books (of course, the handbook should contain policies forbidding all unlawful harassment and discrimination, not just sexual harassment). More than just a simple policy prohibiting certain conduct, a robust policy should also be a “complaint and reporting” policy as well. This means that employees know exactly who they can report to and outlines examples of the type of inappropriate conduct that employees should report.
The policy should require employees to report not only policy violations that happen to them, but also policy violations they observe or have credible information about, even if they did not witness it (such as being told about it by a coworker).
Take Reports Seriously
All complaints of harassment should be taken seriously, no matter how minor they may seem. Furthermore, if the company is aware of the issue, even though an employee has not made a “formal” complaint, the company should initiate an investigation. While it is good to have proper reporting channels, requiring employees to report harassment in a certain way or using certain words should not be a barrier to an investigation to determine whether the report can be substantiated or not. There are no magic words on employee should be required to use (such as “harassment” or “discrimination”), and employers should listen to the type of conduct being described in determining whether to investigate further.
Do an Investigation Promptly
All reports of harassment, however insignificant they may seem, should be investigated promptly by the employer. The employer typically interviews all persons involved in the incident(s) as well as any witnesses. The employer should also review any documents, files, or printed materials that pertain to the allegations. After the investigation, the employer analyzes the evidence collected to determine whether some type of harassment occurred, and metes out some level of discipline or corrective action based on what the investigation reveals. Of course, an employment law attorney can be brought in to do a workplace investigation where the circumstances warrant, such as with an employer who is new to workplace investigations or where the investigation may be especially confidential or large in scope.
Adamantly Prohibit Retaliation
Federal and state law prohibit retaliation against someone who has complained about harassment. As such, it is paramount that employers ensure the person complained of does not retaliate against the individual(s) who brought the complaint forward. Some examples (though this list is certainly not exhaustive) of retaliation would include changing shifts or work hours, reducing pay, disciplining more severely than similarly situated employees, or “freezing out” the employee by leaving him or her out of meetings and other office functions. Employers should be vigilant in watching for retaliation during and after an investigation, especially where the person complained of holds a supervisory role with the company.
Conduct Harassment Trainings
Even if the investigation does not substantiate the claim, consider whether workplace trainings may be appropriate. It is often a good idea to have regular trainings on harassment and discrimination so employees know what type of behavior is prohibited, what type of behavior should be reported and what the company will do once a report is made. Training is often a first-line of defense; providing supervisors and managers with the knowledge and tools of how to handle these situations can reduce liability and the number of these incidents.
Involve Employment Counsel
Sexual harassment claims are an ongoing serious problem, and can result in expensive lawsuits. Getting an employment attorney involved early on can help ease the burden and ultimate costs as they can proactively guide you through the process and help reduce potential liability moving forward.