News of sexual misconduct allegations lodged against dozens of famous actors and powerful business executives and politicians shows the pervasiveness of sexual harassment (or worse) at work.
It also should be a wake-up call for employers who think that it can’t happen at their workplace, or that you won’t be held responsible for the actions of others. It can, and you will.
As we reported from our workplace harassment seminar last year, employers are responsible for what goes on at their business. That means a business owner can be liable even if the employee did not tell anyone he or she was being harassed, or it wasn’t one of your employees doing the harassing, or even if the harassment didn’t occur at the business itself.
Note: The information in this article was presented at the NJBIA seminar Sticks and Stones: Identifying and Preventing Hostile Work Environments in 2016. It is provided for informational purposes only, specific to New Jersey-based employers, and does not constitute legal advice.
So with that in mind, here’s a review of some of the things employers should do to prevent harassment at work.
Create a written policy. If you don’t have one, get one. The policy should cover everyone at every level in the company and apply to any third parties who enter the building, including customers and vendors. It should also define that harassment is the unwanted verbal or physical conduct directed at an individual on the basis of their protected class (age, race, gender, etc.) so severe that a reasonable person would think that the work environment has become hostile.
Designate more than one person to receive complaints. According to Mike Shadiack of Connell Foley LLP, if an employee doesn’t feel comfortable talking to one of the designated managers, he or she must be able to go to another person. If the workplace harassment policy says to report it to the supervisor, what’s an employee to do if the supervisor is the one doing the harassing?
“You always want there to be two or preferably three people in your organization they can go to,” says Shadiack.
Also, make sure employees know what the procedure is. If the employee didn’t know who to go to or how to file a complaint, an employer could still be liable if they sue.
Investigate all complaints. Your policy should make it clear that if an employee is going to complain, it’s going to trigger an investigation.
“The ‘I-don’t- want-to-make-this-a-full-complaint’ request does not work in court,” explains Kathleen Connelly of Lindabury, McCormick, Estabrook & Cooper. “Don’t fall for it. Don’t do it. You are still dropping the ball on your legal responsibilities to conduct an investigation.”