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#MeToo and Sexual Harassment

While Harvey Weinstein gears up to defend his indictment, and legislatures across the country struggle with how to respond to the #metoo movement, many employers are revisiting their sexual harassment policies.

More than 100 bills across the country have been proposed in response to the #metoo movement. These proposals have taken many forms, including:

  • mandating employer policies and training on sexual harassment
  • prohibiting arbitration and confidentiality agreements in sexual harassment cases
  • increasing penalties
  • reducing the number of employees for employers to be covered by the law
  • liability for contractors
  • lengthening the statute of limitations period for claims from 180 days to two years.

We will see if the movement retains its momentum, and if any of these proposals become law. Although it will not affect non-profit employers, the new tax law has already eliminated the tax deduction for employers that settle sexual harassment claims in which the parties agree on a confidentiality agreement. 

Given the present climate, it may be a good time to review sexual harassment law and your harassment policies, as well as your employee training program to ensure any and all complaints are reported to management and dealt with appropriately. 

Sexual harassment is prohibited by federal law under Title VII of the Civil Rights Act of 1964, state law under the Pennsylvania Human Relations Act, and may also be prohibited under local law. There are two types of sexual harassment: 1) Quid pro quo harassment, or “something for something” harassment; and 2) Hostile environment harassment.

Quid pro quo harassment generally occurs in situations where a supervisor, manager or other person with control over employment conditions makes submission to or rejection of sexual conduct either a condition of employment or the basis of employment decisions.

Frequently, but not always, this situation occurs when what may have begun as a consensual relationship has deteriorated. One way to address this situation is to adopt a policy that requires employees to disclose manager/subordinate relationships to management so that the relationship may be monitored, or one of the employees may be moved to another department.

Hostile environment sexual harassment occurs when the sexual conduct of anyone related to the workplace including managers, peers, customers, vendors, or contractors is severe or pervasive enough that a reasonable person would consider the workplace intimidating, hostile or abusive.

Hostile conduct can include:

  • leering
  • commenting on attire
  • sexual comments, questions or jokes
  • flirtation
  • unwelcome touching or propositions
  • inappropriate posters, emails, or magazines

When no tangible employment action has occurred, if the employer knew or should have known about the harassment and has taken no corrective action, they will be liable for these types of claims.

An employer can defend against claims of hostile environment harassment by proving it tried to prevent and correct the harassing behavior, and the employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer. This is why appropriate harassment policies are so important to include in employee handbooks.

An appropriate harassment policy should define sexual harassment, state the employer’s intent to prevent and remedy harassment, promise there will be no retaliation for complaints, and provide a complaint procedure. Even the best policy won’t work if employees don’t know about it and/or don’t follow it. Employers need to make sure the policy is provided to all employees, and that all management employees are trained to report harassment, even if the harassed employee doesn’t want to make a big deal of it.

Sexual harassment problems do not always occur in the workplace. They can happen at work functions or parties, work trips, and even non-work events with co-workers. Employment policies prohibiting substance abuse at employment events and declining to reimburse for alcohol while at meetings may also help reduce some of these issues, and the liability of the employer.

Although ensuring that you have appropriate harassment policies and a trained workforce may not prevent all sexual harassment complaints, it will help you put your best foot forward in resolving them quickly, without the need for court action. It also promotes a professional and pleasant workplace for your employees.