Over the past year, accusations of sexual harassment have unfolded against several high-profile and influential public figures. Many of the accusers were women who claimed that they were harassed while working with and/or reporting to the alleged harassers.
Soon emerging in the wake of these scandals was the #MeToo social media campaign, which involved participants sharing their personal and painful accounts of workplace harassment ranging from unwanted catcalling to rape and sexual abuse.
The Equal Employment Opportunity Commission (EEOC) responded by taking immediate steps to address the problem, including pursuing class-based sexual harassment investigations.
According to preliminary FY 2018 Sexual Harassment Data, the EEOC has filed 41 sexual harassment-based lawsuits—reflecting more than a 50 percent increase over fiscal year 2017.
In addition, the EEOC has announced several victories in class-based sexual harassment investigations, including:
- $80,000 settlement in December 2018 with the owner of over a dozen Subway franchises concerning claims of multiple female applicants who were not hired after refusing to comply with the former general manager’s explicit quid pro quo requests.
- $160,000 settlement in October 2018 with an Italian restaurant chain on behalf of three employees who complained of unwelcome sexual comments, sexual propositions, unwelcome touching and assault by a male server.
- $340,000 settlement in January 2018 with a restaurant chain concerning claims by 15 former female employees, some of whom were teenagers at the time of the alleged harassment. Under the consent decree resolving the case, the company agreed to implement new policies, conduct extensive training, and report compliance to the EEOC for a five-year period.
No Signs EEOC Push Will End
It is unlikely that the EEOC’s push to enforce sexual harassment protections will stop any time soon. In fact, keeping up with the momentum, in May, the EEOC filed suit against two Washington resorts based on allegations that the resort repeatedly subjected their female employees to sexual harassment.
That same month, the EEOC sued a New York-based restaurant chain for turning a blind eye to the harassment of numerous female employees, including instances of groping, grinding, and flagrant comments. Given the EEOC’s renewed commitment to taking preventative measures with respect to sexual harassment, these are cases to watch.
Employers with multi-state operations should take special precaution. There are a host of new state and local sexual harassment laws that may require employers to update their policies and provide specific training to employees. Over the past few months I have given sexual harassment trainings to clients with operations in New York and California. Although the task of bringing your workplace to full compliance with applicable laws may seem daunting, it is imperative to minimize the legal risks associated with inaction.
Sexual harassment affects employees of all genders, and harassment for any reason can have a significant negative impact on employee morale and productivity. As such, employers must work hard to maintain a safe, inclusive, and productive workplace, as it is vital to cultivating a successful workforce.
Tips for Anti-Harassment Workplaces
Below are some suggestions for employers to help establish an anti-harassment workplace:
- No. 1: Update harassment policies. Ensure anti-harassment and retaliation policies and reporting procedures are updated and, at minimum, compliant with state and federal laws. Make sure handbook provisions do not discourage employees from reporting potential legal violations to government agencies.
- No. 2: Set up an anti-harassment hotline. Hotlines are relatively inexpensive and require little time to implement, but can be an effective mechanism for gathering employee complaints. The hotline should allow employees to confidentially and anonymously report incidents of harassment, discrimination or retaliation. The hotline number should be listed in the appropriate employee policies and/or handbooks and, if possible, on the company’s intranet and Website.
- No. 3: Train employees. Employers should provide training to employees in supervisory/managerial roles regarding how to identify potential workplace harassment and retaliation and handle complaints when reported. Non-supervisory employees should also be trained on how to identify potential harassment and retaliation, as well as how to report suspected harassment.
- No. 4: Establish effective internal investigation procedures. Employers should ensure that human resources representatives and in-house counsel are trained on how to conduct an impartial and thorough investigation. As appropriate, companies may seek the advice of outside counsel to ensure objective investigations.
- No. 5: Encourage an “open door” culture. In addition to stating the existence of an “open door policy,” employers can set specific hours for employees to bring concerns or complaints to managers assigned to them and to human resources professionals. Further, while employee policies and/or handbooks should establish a “chain of command” for employees to report complaints, this should not be rigid. A complaint process is not effective if employees are required to first complain to their supervisors about harassment, because the supervisor may be the alleged harasser. When possible, the employer should designate at least one official outside an employee’s “chain of command” to take complaints, for example, a human resources professional.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners
Jayde Ashford Brown is an employment attorney at Hunton Andrews Kurth in Dallas where she represents employers in matters arising under federal and state law. In addition to litigation, she counsels clients on best employment practices and is a frequent speaker, training facilitator and author on various employment law topics.