Creating an antiharassment workplace culture in the #MeToo era

Sexual Harassment

July 2018
Ryan B. Frazier
Utah Employment Letter

But simply making the policy accessible isn’t enough. Employees need to actually believe the policy is more than an apathetic or disinterested platitude or some obligatory or boilerplate statement that a lawyer inserted into the handbook. They must feel that the statement reflects a real attitude and that the employer actually aspires to that goal. Otherwise, the policy is unlikely to be followed and almost certainly will have little to no effect on the company culture.

Acts of sexual abuse and harassment that had been allowed to grow and metastasize malignantly in the dark were now being exposed. Victim after victim came forward with stories of abuse and harassment. Their accounts became public, and victims found support and solidarity as part of this growing movement as they empathized with one another. They were encouraged, inspired, and empowered to speak out by the confidence of others already telling their tales of abuse. Banding together, these victims and others supporting the movement publicly and powerfully declared that they will tolerate abuse and harassment no longer. This movement is empowering even more victims to confront their harassers despite the fear of reprisal or embarrassment that accompanies reporting sexual harassment.

This movement has permeated all facets of society, including the workplace. It’s affecting the way the public views and thinks about sexual misconduct. Within the workplace, employees are increasingly opening up about workplace sexual harassment. Bloomberg BNA reports that more than 400 executives and other high-profile employees have been exposed by the growing #MeToo movement since it started to take off. Many employers have embraced the movement and have taken steps to eliminate and prevent further sexual harassment in the workplace.

Unfortunately, that’s not universally the case. Some employers are simply holding their proverbial breath, hoping they won’t be implicated. As this movement puts a spotlight on workplace sexual harassment, they need to begin to take action to eradicate harassment and abuse.

Seeing the blind eye

Since the #MeToo movement started to gain momentum, an increasing number of agency actions and lawsuits have been filed against employers alleging sexual harassment in the workplace. In many instances, a current or former employee alleges that the employer disregarded or consciously ignored harassment perpetrated by executives or others in positions of authority. Employers shouldn’t turn a blind eye to workplace sexual harassment. For one thing, it could result in significant legal liability.

To be liable, an employer doesn’t have to conceal an employee’s harassment knowingly. If it was aware of but failed to take appropriate steps and action to prevent and eliminate illegal workplace sexual harassment, that’s enough. Keep in mind that knowledge of harassment by those in authority can be imputed to the employer. An employer can be automatically liable for harassment by a supervisor that results in a negative employment action against the victim. Likewise, an employer can be automatically liable for what is termed “quid pro quo” sexual harassment by a supervisor. This type of harassment is when an employee—typically a manager or someone in a position of trust or authority—conditions benefits, compensation, or other terms of employment on the granting of sexual favors.

An employer can also be liable when harassment results in a hostile work environment. This is a situation in which an employee—again, it may be someone with supervisory authority—so permeates the workplace with unwelcome conduct of a sexual nature that it unreasonably interferes with an individual’s job performance. To avoid liability for a hostile work environment, the employer must prove that it reasonably attempted to prevent and promptly correct the harassing behavior and the victim reasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. Defending against a claim isn’t a situation in which an employer wants to find itself.

Not only can harassment expose the employer to significant liability, but it can also cause employee morale to plummet and public support to wane. But even employers don’t suffer such effects, they have a moral obligation to stand against sexual harassment, which is inherently wrong and intrinsically repugnant to how someone should be treated.

Regrettably, some employers ignore workplace sexual harassment. On occasion that happens intentionally, but on other occasions it simply occurs because the employer isn’t paying the attention that it should to its workplace. This can happen when the employer permits a workplace culture that allows sexual harassment to remain hidden.

Worse yet, some employers intentionally conceal or cover up sexual harassment. An employer may feel that the bad press from having an executive or high level employee sexually harassing others could harm the business. They attempt to dissuade a victim from speaking out or challenging the harassment. Victims are told that is just the way the manager is or there is nothing that can be done to change the situation. In doing so, employers become part of the problem and potentially expose themselves to even greater liability and ridicule.

Culture of intolerance of harassment

The antidote is to engender a workplace culture in which sexual harassment simply is not tolerated. A good place to start is to ask what the employer can do. There are many things that can be done to prevent and eradicate harassment from the workplace and cultivate a culture that refuses to accept or allow it.

Foremost, employers need to have a little humility as they attempt to change their culture. Some employers are very good at addressing workplace harassment. They do not tolerate sexual harassment in the workplace. Not only have they spelled out anti-harassment policies, but they also may have conducted trainings tailored to harassment prevention. However, taking such praise-worthy steps doesn’t mean sexual harassment cannot still exist in such a workplace.

An “it-can’t-happen-here” attitude will only perpetuate the failure to see what is actually going on. Employers need to recognize that no matter what procedures and processes they have implemented, sexual harassment can still take place in their workplaces. No employer is immune. Approaching harassment with this understanding will allow them to remain vigilant, which will enable them to better address workplace harassment and endeavor to prevent it further.

Developing a culture that doesn’t tolerate sexual harassment is much more than simply establishing policies. A culture change requires modifying the way employees think about harassment in the workplace and their attitudes toward their coworkers. Bringing about such a culture shift requires conscious effort and diligence. An attitude of mutual respect needs to be fostered. And employers need to change how sexual matters are dis-cussed and considered in the workplace.

Of course, culture change typically starts from the top. Management needs to be onboard with the change. They need to be committed to the elimination of harassment. The attitude cannot be only how to protect the business from potential liability for harassment. Although that is a key concern, management needs to convey an attitude of intolerance of harassment. If management becomes purely protectionist, the approach is less about the elimination of harassment and can be-come more focused on concealing and avoidance. And that attitude can be sensed by the rest of the employees.

Instead, management needs to communicate that it is committed to changing how employees interact. In part, this flows from education and training for management on what constitutes acceptable and unacceptable behavior. Management also needs to become up to speed on how to stifle harassment early on and how to address problems or conflict between workers.

Anti-harassment policies

In addition, culture shift can start from the implementation of appropriate declarations of position and anti-harassment policies. Every company needs to establish clear policies that guide the company culture on sexual harassment. The policy should be clear that sexual harassment will not be tolerated in any way, shape, or form. It should specifically define what behavior isn’t permissible. Quid pro quo sexual harassment, one of the most obvious forms of sexual harassment, should be explicitly prohibited. The policy should make clear that not only is such conduct completely unacceptable, but that it could also result in severe discipline, including possibly termination. Unwelcome physical contact or touching also should be expressly banned from the workplace.

However, the policy should make clear that physical contact isn’t the only conduct that is prohibited. A good starting point for any policy is what is made illegal under the various anti-discrimination and anti-harassment laws, including Title VII of the Civil Rights Act of 1964 and Utah’s Anti-discrimination Act. Under the law, the key is whether the conduct or statements are objectively considered unwelcome or offensive. Illegal sexual harassment includes verbal conduct of a sexual nature, such as talking about sex or sexual feelings, telling or circulating sexual jokes or stories, asking personal questions about dating or sexual life, making sexual comments or innuendos, whistling or making other suggestive sounds, repeatedly asking for dates, or other personal attentions.

In addition, nonverbal conduct of a sexual nature is illegal. Such conduct would include displaying materials with sexually suggestive words or pictures, making sexual gestures, giving gifts or other items of a sexual or personal nature, staring at a person’s body or clothing, looking a person up and down (leering at someone), blocking a person’s path, hindering a person’s movement, invading a person’s space by standing closer than appropriate under the circumstances, or allowing guests or customers to “hit on” an employee. The policy should clearly ban all of this illegal conduct. It should also prohibit communications, jokes, comments, and other verbal statements of a sexual nature that an employee could consider unwelcome or offensive.

Once in place, the policy needs to be plainly communicated to employees. The language needs to be understandable so that employees can recognize what is expected and to conform their behavior to the policy. The policy should be prominently set forth in an employee handbook that is regularly and easily accessible to all employees. It’s often wise to have employees sign a written acknowledgment that they have been provided a copy of the handbook and have had the opportunity to read and understand it.

But simply making the policy accessible isn’t enough. Employees need to actually believe the policy is more than an apathetic or disinterested platitude or some obligatory or boilerplate statement that a lawyer inserted into the handbook. They must feel that the statement reflects a real attitude and that the employer actually aspires to that goal. Otherwise, the policy is un-likely to be followed and almost certainly will have little to no effect on the company culture.

Further, employers should hold regular training on the policy and the company’s anti-harassment attitude. This both communicates the information and begins to plant the seeds of the culture they are attempting to cultivate. The more education employees receive on acceptable and unacceptable behavior, the more likely they are to conform.

Reporting harassment

Workplace harassment can be defeated only if it comes out of the darkness into the light. That is really what the #MeToo movement is all about—exposing and revealing past and ongoing sexual harassment. But because the power and influence of some perpetrators can be significant, many victims and others aware of

sexual harassment feel that reporting it either will fall on deaf ears or, worse, will result in some form of retaliation. Such negative consequences—whether perceived or real—can have an enormous chilling effect on the re-porting of harassment by victims and others. Of course, retaliation for reporting harassment is illegal, but that doesn’t eliminate the fear of reprisal. Someone may not be willing to report harassment when confronted with the risk of the loss of a job on which she is dependent.

Further, employees may not want to report their friends, coworkers, or others with whom they have a relationship, particularly if they believe reporting might get that person “into trouble.” They may also be reluctant to report a manager or a manager’s friend.

Thus, for harassment to actually come to light, employees must believe that they can complain about workplace harassment without fear of reprisal. Employers must create an environment in which employees have confidence that their reports will be taken seriously and that negative repercussions won’t follow a harassment report.

A good place to start is to make this abundantly clear in the ant-harassment policy. Part of the policy should be information on how to report workplace sexual harassment. A spirit of transparency and openness should be communicated by the policy. The policy must make clear that retaliation or reprisal won’t occur for opposing or reporting harassment.

The policy also needs to establish plainly how workplace harassment is to be reported. It must identify multiple persons to which harassment can be reported. Multiple options increase the likelihood that a reporting employee will feel comfortable reporting to some-one. This list can include supervisors or managers and HR personnel. Importantly, an immediate supervisor should never be the only option. The supervisor might be the perpetrator of the harassment or be friends with the alleged harasser. The only way a reporting policy can be effective is to foster an environment in which individuals feel free to report harassment.

In addition, management must have an open-door policy when it comes to harassment. A manager must be willing to listen. The manager must take any report of sexual harassment seriously, regardless of how preposterous it may seem.

Upon receiving a report, the employer must promptly initiate an investigation into the alleged harassment. The failure to take action will send a message that reporting sexual harassment is unwise because it won’t prevent or stop the sexual misconduct. An investigator should speak with anyone with knowledge of the alleged harassment. That obviously would include the victim and the alleged perpetrator. In addition, inquiry should be made to find out whether others had been harassed by the perpetrator. If it’s determined that there was harassment, appropriate and swift discipline (including termination in appropriate cases) should be meted out. A report of the results of the investigation and discipline should be given to the person who initiated the report and to any victims.

Management must be trained on how to receive and address a complaint of harassment. They need to under-stand how to proceed to address a complaint. Employees—potential victims—need to be educated on how to report harassment.

Lessons learned from #MeToo

The #MeToo movement has generally had a positive effect on the workplace. One of the obvious con-sequences has been employers taking a hard look at themselves and their policies, attitudes, and treatment of sexual harassment. As the #MeToo movement continues to grow, employers need to be proactive in taking steps to prevent and stop workplace sexual harassment. If they haven’t already done so, they should discuss how to develop an anti-harassment culture. They should make sure their policies comply with at least the minimal requirements of the law and implement employee training aimed at eliminating workplace harassment. The failure to make changes in the workplace may result in liability and bad press. If sexual harassment is to be eradicated, it will be only with good corporate citizens who want to end harassment in the workplace.

Attorneys

Practice Areas