I have lost track of the number of times in my 27-year career—usually when giving a seminar presentation—that I have been asked the question, “How can I keep from being sued?” My response never varies, “You can’t.” A person or a company can do the very best that they can—follow all the rules to the best of their abilities—and, yet, still be brought into litigation. Sometimes, despite best efforts, they have made a mistake (and the larger the company, the more individuals there are to make those mistakes). Sometimes, they simply are wrongly accused. Sometimes, unfortunately, they (or someone in their organization) did not believe the rules applied to them. All that can be done is to lessen the risk of suit by employing best practices. The overriding reason for employing best practices, however, should never be simply to avoid lawsuits, but instead to instill a culture where people work well together to achieve a good result. Reducing the risk of litigation is just one positive byproduct.
The Impact of the #MeToo Era on Employers
The recent number of daily accusations being made against prominent men (and some women) and the rise of the #MeToo movement on social media have added an urgency to the question of how to avoid lawsuits involving claims of sexual harassment/hostile work environment. Employers are rightly concerned about the implications of a media-driven call-to-judgment against individuals who are accused of sexual harassment, particularly where claims involve alleged conduct spanning years. The accused are automatically labeled predators before any evidence is presented in a court of law and employers are similarly damned for “being complicit,” for “reacting too quickly” or “not quickly enough,” for “turning a blind-eye,” and for “buying silence in confidential settlement agreements.” Are there true predators? Are there true victims? The answer to both questions is an emphatic, “Yes!” However, in the heat of the moment, when accusations are flying in all directions, it is hard to discern who is who. Employers can be caught in the middle while trying to do the right thing for multiple constituents.
Best Practices to Avoid Workplace Harassment Litigation
So, what is an employer to do? What are best practices?
First, each employer should understand that every assertion of #MeToo in the media or claim of harassment does not necessarily rise to the level of sexual assault or unlawful sexual harassment as those terms are defined by law. What each #MeToo assertion means is that unwanted or unwelcome sexual interactions in the workplace still exist across all forms of employment almost 54 years after Title VII (the Civil Rights Act of 1964) was enacted by Congress and signed into law by President Johnson. Numbers, however, do not provide sufficient information regarding the unwelcome conduct. They do not tell us whether the alleged victim addressed the issue with the alleged harasser, whether the purported victim reported the unwelcome conduct through a supervisory chain of command, and whether the employer had policies in place and took prompt and effective action. All any #MeToo claim means is that unwelcome conduct—from the boorish to the truly predatory—may have occurred and we, as members of society and as employers, need to pay attention.
Second, employers should welcome the information now available in the #MeToo era and, as a best practice, be thinking proactively, rather than reactively. Don’t wait until an accusation occurs and, most importantly, do not assume that harassment never occurs at your company. Employers can be liable not only for their own employees’ conduct, but also the conduct of visitors if that conduct is unwelcome, directed at a member of the employer’s workforce and the employer fails to take action to stop the conduct. Just as you would examine your company’s processes to ensure you were delivering the best products to your customers, so too should you assess how you are protecting your employees from sexual harassment in the workplace. Here are some questions you should ask yourself:
When were your employment policies last reviewed and updated?
Do those policies reflect your company’s vision, mission and ethical code?
Are your policies clear and understandable for all employees?
Do your policies provide a meaningful process for employees to bring concerns forward to management, including concerns about harassment and discrimination, and for those concerns to be investigated and addressed?
What training do you provide your employees and supervisors regarding your employment policies and unlawful harassment and discrimination? Is it an interactive process with “real life” scenarios? Does your training take into consideration cultural changes and empathy for learning differences?
Does everyone get the training (from the Board of Directors to frontline workers)?
How do you assure yourself that employees understand your policies and, more importantly, the implications of their words and actions when interacting with co-workers, supervisors, and customers?
Beyond the training, do you encourage an open-door environment where employees are empowered to speak up for themselves and for those they believe may be harassed?
What process is in place if a claim is made?
Third, as a best practice, when evaluating policies and processes, employers should look at sexual harassment and discrimination as just one arm of a many-tentacled beast called “bullying.” The harasser or “bully” uses his or her perceived power to intimidate or coerce someone else that he or she perceives to be less powerful or vulnerable. Thus, the same assessment with respect to the effectiveness of sexual harassment policies and training applies to issues of race, ethnicity, nationality, religion, sexual orientation and disability. A “zero tolerance” for bullying should be coupled with a philosophy of professionalism, personal responsibility, mutual respect, and treating people well. It should not be surprising that the Golden Rule or the “law of reciprocity” is a fundamental maxim in most world religions and cultures. Because it is so widely accepted, the Golden Rule can be incorporated into policy adopted by a diverse workforce. Leadership provides the example.
Finally, as a best practice, employers should be mindful that it is impossible to be free from all potential lawsuits. Consequently, it is prudent to evaluate the need for employment practices liability insurance (or “EPLI coverage”), and whether existing EPLI coverage is adequate.