So, a Manager Just Pawed You. Or a Principal at Your Firm Made Lewd Remarks. Now, What?
Five legal steps you need to take, to regain control, as either the victim of sexual harassment or the employer of one.
As more allegations of sexual harassment emerge -- against Today Show host Matt Lauer, against actor Kevin Spacey, against (the just resigned) Minnesota Sen. Al Franken -- the number of powerful men facing consequences for their actions continues to rise; call it the Weinstein Effect.
At the same time, the companies involved, such as NBC, are struggling to repair the damage done to their brands. In light of the societal dialogue growing ever louder about sexual harassment in the workplace, employees and employers alike should consider how to take control of the situation if harassment happens to them or their workplace.
How, exactly, do you re-route your consequences, particularly from a legal perspective?
Start taking control by simply knowing what the term "sexual harassment" means so that you can accurately report it should it occur. Sexual harassment is generally identified by two categories: 1) a quid pro quo; or 2) a hostile work environment. But what exactly constitutes sexual harassment under these categories? These incidents rise to the level of sexual harassment according to criteria set out in the Code of Federal Regulations.
For the layperson, quid pro quo examples tend to involve the offer of a promotion or raise in exchange for sexual favors. Examples of a hostile work environment, meanwhile, include unnecessary and unwanted touching, comments on physical attributes, off-color jokes or inappropriate emails.
Lauer, for example, has been accused of actions that would fall under the hostile work environment portion of the law. These allegations include reports of flirty banter, lewd sexual remarks about female colleagues and an allegation that he exposed himself to a female employee.
If you are the employee targeted by such bad behavior, or someone in a workplace where it's occurred, here's what to do:
Act now. Investigate. Prepare. If sexual harassment has occurred in your workplace, a crucial first step is to document everything you can as it happens (dates, time, description and witnesses).
While it can often be scary and intimidating to confront your harasser, it is important that victims firmly tell the person to stop. If possible, ask a colleague, or friend, to accompany you -- not just for your own protection, but as a witness. Lastly, report any incidents to your supervisor and/or the predator's supervisor, to the human resources department or to management, as may be applicable to your company.
The best way to document harassment is to email or text it to yourself so that you have contemporaneous records. If you choose email, make sure the email is not your work email and that every email is saved properly. Those emails or texts need to include all actions taken, the substance of conversations with co-workers and extra details (clothing, weather, time, etc.) that can bolster your testimony and credibility.
Contact an attorney. You might be surprised at how many people wait until they have been retaliated against to contact an attorney. Not only can an experienced attorney make sure the victim's voice is heard, but he or she can also help you secure protection at work and compensation for damage you've suffered, as well as guide you through documentation, witness-gathering and reporting decisions within your company.
As an employer at a workplace where sexual harassment has been reported, take control by immediately investigating the allegations and seeking out proper counsel on what steps to follow. Employers who fail to investigate after receiving notice and who clearly have knowledge of the circumstances open themselves up to additional legal liability.
Don't have an employee manual? Get one. Take control and anticipate the problems by protecting your employees before harassment occurs.
Set up safe havens for reporting of any incidents, and establish clear and accessible open-door policies for reporting. Many victims of workplace harassment indicate that they did not come forward because they did not feel comfortable doing so. Having dedicated persons within the business whom employees feel comfortable approaching with workplace issues is vital to providing such an environment.
If harassment occurs, taking appropriate action means that the business must consider the strength of the evidence, type of aggressive behavior, prior adverse action taken against the employee by the harasser and finally, the prior history of the accused.
Immediate termination may then be indicated -- as occurred with NBC's dismissal of Matt Lauer, and Netflix's firing of Louis C.K. -- or else admonishment and accommodations, depending on the situation. Requiring harassment education and training for a first-time offender is another possibility. Most importantly, a business must make every effort to ensure that the victim is protected and has no any adverse action or treatment taken against him or her.
Know when an employer is liable for the actions of the employee/victim's supervisor? The U.S. Supreme Court set the standards for employer liability in 1998 with two cases it decided on the same day: Faragher v. City of Boca Raton, and Burlington Industries, Inc. v. Ellerth.
The "Faragher" case
For five years in the late 1980s, Beth Ann Faragher worked part time as a lifeguard for the Marine Safety Section of the Parks and Recreation Department in Boca Raton, Fla. In 1992 she brought an action against two supervisors and the city, filing claims under Title VII (of the 1964 Civil Rights Act) and Florida law, arguing that her then supervisors created a "sexually hostile atmosphere" at the beach.
Incidents of harassment allegedly included "uninvited and offensive touching," lewd remarks, and offensive comments against women. To defend itself, the employer had to prove it had exercised "reasonable care" to prevent such behavior; and it had to prove that the plaintiff had unreasonably failed to take advantage of any preventive or corrective opportunities in the workplace.
In its decision, the Court laid out the standard for such cases, writing that, "An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence."
To successfully defend itself, an employer must prove two necessary elements: a) It exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and b) The plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
The "Ellerth" case
Burlington Industries, Inc. is an American textiles company where Kimberly Ellerth worked for 15 months as a salesperson before quitting. She later alleged that the reason she left was because she had been "subjected to constant sexual harassment by one of her supervisors."
This supervisor was a midlevel manager with the authority to hire and promote employees, and Ellerth alleged three separate occasions where the supervisors at her workplace could be seen as threats to her receiving the tangible benefits of her job. Ellerth did not report the harassment, even though Burlington Industries had a policy against it. And she rebuffed all advances and did not suffer any retaliation. She was even promoted once.
In its decision, the Court addressed this question, establishing that, "Under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions, but the employer may interpose on the affirmative defense."
In the end . . .
Reporting of sexual harassment is the right thing to do, from both an employee's and employer's perspective. If you are being harassed, you are likely not the only one at your workplace, and speaking up could protect your fellow and future employees from suffering a similar experience. If you're an employer, the earlier that you discover and end the unlawful behavior, the more potential you have for preventing claims.
That's an important point because such claims can seriously damage your reputation, your prospects for investment and your bottom line.
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