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Labor Law: Dealing with workplace claims of sexual harassment

Labor Law: Dealing with workplace claims of sexual harassment

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Last week’s article discussed sexual harassment in your workplace. This week’s article builds on the topic of improper workplace conduct.

Employee Complaints

Of the women who recently came forward in the case of San Diego Mayor Bob Filner, none lodged formal complaints within their organizations. Most of them told colleagues but did not follow available avenues to complain. Why? In my experience, women who have worked hard to succeed in their professional careers rarely complain. Since Filner allegedly selected women who were largely successful, he targeted a group that most likely would just avoid him, or quit, rather than lodge a complaint.

In your workplace, make sure employees understand they have an obligation to bring misconduct forward. If someone comes to you in confidence, you must report it. Do not ask the employee if she wants to file a formal complaint or require her to put it in writing. The conversation is the formal complaint, and you must respond.

Investigations

Immediately upon receipt of the complaint, you must investigate. Conduct an objective, thorough and legal investigation to get to the truth. There is no he said, she said. In these situations, someone is lying. It’s the investigator’s job to figure out who that is. Never assume someone is guilty. In my experience, I find that the alleged behavior occurred in roughly 65 percent to 70 percent of the cases I investigate.

Training

One of the accusers filed a state lawsuit against Filner and the city. Filner now blames the city because it did not provide him sexual harassment training. 

After the employee proves her case that a manager’s conduct was based on gender, offensive objectively and subjectively, and that it was severe or pervasive, causing an abusive working environment, the employer has the opportunity to prove an affirmative defense by showing:

  • It exercised reasonable care to prevent and correct promptly any sexually harassing (or racial, or other) behavior; AND
  • That the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

“Exercising reasonable care to prevent” harassment includes training employees on their obligations. I frequently get asked by employers to conduct sexual harassment training. Of course you want to tell employees about the laws of harassment, but if your organization is waiting for something to rise to the level of legal harassment, the workplace has lost all control.

Your training, which at most needs to be half a day, should focus in particular on the laws of harassment, but more importantly, on your expectations for workplace conduct. The training must draw a line in the sand that certain behaviors will not occur at work. And there cannot be any double standards. It is not OK for two black people to use the “n” word with each other, just as it isn’t OK for two women to discuss their sex lives at work. These are examples of “off limit” discussions. I remind employees to hold each other accountable, because in the end, this behavior impacts everyone in the workplace.

Sometimes employees get offended by topics raised in the training. I acknowledge that this is a legitimate concern, but without specifics, employees won’t fully understand their responsibilities. Of course, some of the topics I raise are obvious. For example, I tell participants not to watch porn on their iPads while working (sadly, some people need a lawyer to tell them not to do that!). Others are more subtle, such as when an employee initiates the flirting, or when a top client makes a sexual remark to a staff member.

Keep in mind that there are two types of training: the kind designed to check the box, and the kind designed to change behavior. While computer-based training can train the masses, in my personal experience it does not change behaviors. The best training includes case studies, group discussions and a forum where participants feel comfortable asking questions. Regardless of what type you choose, even small employers need to set expectations for workplace conduct through training, or a series of meetings or discussions. Finally, be sure to have all participants sign acknowledgement of attendance.

Further, attendance in the training or discussions should be mandatory. Inevitably, the very person for whom you get the Equal Employment Opportunity Commission charge will be the one person that didn’t go to the training. Hold a makeup session and make sure that every single manager attends, regardless of gender, race or tenure.

In closing, inappropriate conduct toward other employees impacts the entire workplace. No employee can get a bye. Every employee must be held accountable. Leaders must set the standard for proper workplace conduct, train on it, enforce it and never tolerate it. Even the little things add up, so stop improper behavior early and often.

Karen Michael is an attorney specializing in practical work law solutions and provides advice, training and investigations to organizations in the public and private sector. The information in this article is offered as general information and is not intended to serve as legal advice and should not be relied upon as legal advice, nor does it form any client/attorney relationship.

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