by Emmanuel V.R. Boulukos
Ice Miller is an IMA member full service law firm…
Thirty-one years ago, in Meritor Savings Bank v. Vinson, the Supreme Court held that “hostile work environment” sexual harassment was a form of unlawful sex discrimination under Title VII of the Civil Rights Act of 1964. In the decades that have followed, most employers have implemented policies and procedures aimed at preventing and addressing unlawful harassment. Harassment prevention and sensitivity training programs have become fixtures of corporate America.
And yet, three decades after Meritor, sexual harassment continues to trouble the American workplace. In recent years, a number of high-profile corporate sex harassment scandals (Fox News, Uber, and American Apparel, to name a few) have garnered intense media scrutiny and unleashed the social-media whirlwind. There are lessons to be learned.
As these cases demonstrate, in addition to prolonging the trauma inflicted upon the direct victims of sexual harassment, failing to swiftly and appropriately remedy such conduct erodes employee morale, undermines the credibility of management, and chills efforts to build a diverse workforce. Brands and businesses may be damaged or destroyed. The ostrich approach is not a viable option.
Although, in the long run, no workplace is likely to remain entirely free of inappropriate conduct, employers who truly commit to building a safe and professional workplace are usually successful in doing so. The two essential elements of fulfilling this commitment are developing and implementing appropriate policies and enforcing them with urgency and consistency.
Institutional self-awareness is also a must. To remain vigilant, employers must acknowledge and learn from their own mistakes. Likewise, there is much to learn from the missteps of others. While every workplace and industry presents unique challenges, employers of all types can benefit from remembering these five lessons, which many employers have learned the hard way.
1. Be Quick, But Don’t Hurry To address harassment effectively from an employee relations perspective—and to preserve critical legal defenses—complaints should be investigated with a sense of urgency. At the same time, it is equally important that your investigation be thorough. Do not delay, but take the time to gather and consider the relevant facts before reaching any conclusions.
2. Focus on the Facts, Not the Folks In conducting any workplace investigation, employers often struggle with separating preconceived notions of the employees involved from the particular facts of the issue at hand. It is important to be aware of and take pains to resist this troublesome impulse. Victims and their harassers alike may be good employees, poor employees, disgruntled employees, or star employees. Keep an open mind, and focus on the facts. Something to consider: Because workplace sexual harassment almost always involves a power dynamic (supervisors are rarely harassed by their direct reports), serial harassers may target vulnerable employees, including those they perceive as having less credibility due to performance or disciplinary issues.
3. Enforce the “Law” of Your Workplace It is true plaintiffs face a high bar in attempting to prove a legal claim of hostile work environment sexual harassment. As the courts have made clear, Title VII is not intended to be a civility code. Isolated instances of inappropriate conduct are often insufficient to support a claim of unlawful harassment. That said the legal standard of what constitutes sexual harassment provides a poor guideline for building a workplace culture. Your policies are the “law” of your workplace, and the way you enforce them should reflect your organizational values and aspirations, not the bare minimum necessary to avoid legal liability.
4. No One Is Above the Law Consistency of enforcement is absolutely critical to maintaining credibility. If leaders and star employees get away with bad behavior, other employees will notice, and the sincerity of your organization’s purported values will be (rightly) called into question. To the extent that an internal issue becomes a news story, nothing feeds social media fury like the perception of special treatment for the powerful. Leaders must be exemplars of appropriate conduct.
5. Be Willing to Exercise Judgment As an investigation comes to a close, employers sometimes struggle to reach conclusions about key facts, which often hinge on credibility determinations. Some investigators mistakenly believe they must have a “smoking gun” (such as video footage or an eye witness) to substantiate a complaint. Not so. The reality is sexual harassment often occurs when other employees are not present. Faced with conflicting stories, it is perfectly appropriate to make a credibility determination, taking into account any relevant circumstantial evidence. There is no requirement that a complaint be proven “beyond a reasonable doubt.”
With these lessons in mind, it is helpful to consider how your harassment policies and practices reflect and support the overarching goals of your organization. A commitment to core values, consistency, and integrity isn’t just critical to combating sexual harassment, it essential to building a better workplace in all respects.
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