Punctuated by the very public October 2017 downfall of Harvey Weinstein, dozens of employers in a wide variety of industries have faced a media storm of negative publicity due to allegations of workplace sexual harassment.
At the same time, the Equal Employment Opportunity Commission recently published a new guidance document, “Promising Practices for Preventing Harassment,” which provides a host of practices employers can adopt to avoid misconduct. Based in part on the EEOC’s recommendations, we have provided our top suggestions for employers:
1. Establish Robust Anti-Harassment Policies and Internal-Complaint Procedures:
Anti-harassment policies should, at a minimum:
- Describe prohibited conduct;
- Encourage employees to report conduct they believe may constitute harassment;
- Prohibit retaliation against employees who make such reports; and
- Notify employees that engaging in any prohibited behavior may be grounds for discipline, up to and including termination.
2. Establish and Publicize Internal-Compliant Procedures
Employers must detail their procedures for receiving and investigating internal complaints including anti-retaliation policies. The procedures should designate specific individuals responsible for receiving and investigating reports of suspected harassment. The investigators should conduct a thorough assessment of all complaints including meeting with the complainant and the accused during the course of the investigation. At the conclusion, the investigators should also strategically share necessary information with the complainant and the accused. Most importantly, complainants must be free from retaliation for a complaint, even if the complaint does not lead to disciplinary action. Management should educate the complainant and accused that even the simplest changes in conduct – name-calling, speaking negatively, and even avoiding the complainant – could be interpreted as a form of prohibited retaliation.
3. Engage with Corporate Leadership to Ensure Accountability at All Levels
Nothing speaks louder than having the full, genuine support of corporate leadership. Impress upon supervisors that effective management includes responsibility to the employees they oversee. Consider having the company’s President or CEO circulate a letter to all employees, highlighting the importance of workplace conduct and attaching a copy of the company’s anti-harassment policy.
4. Mandate Trainings to Communicate Employee Rights and Responsibilities, and Effective Management Intervention Techniques:
Mandatory trainings must involve and include all levels of management. These trainings should include both a review of internal company procedures and generally accepted methods of preventing or halting harassment, such as bystander intervention training. This will help prepare managers to consider harassment in real-life situations.
The Office Holiday Party
Office holiday parties are known for being breeding grounds for potential misconduct. Employers should take steps to prevent any unwelcome behavior at workplace-sponsored events, such as:
- Designate several managers as “party chaperones,” with explicit instructions to remain sober and keep an eye on the festivities and any particularly frisky and/or unruly guests. (Please note that if you designate any non-exempt employees as “party chaperones,” time spent pursuant to this assignment may be considered “time actually worked” for payroll purposes.)
- Instruct the venue’s bartender to be mindful of guests’ alcohol consumption, and to stop serving any guests who seem like they are intoxicated.
- Send an e-mail before the party to remind all employees that you want them to have a fun and safe evening, and encourage employees to approach the “party chaperones” if they feel unsafe or need assistance throughout the evening. Include a reminder in the party invitations that “all office policies, including the code of conduct and disciplinary policies, apply in full effect during the holiday party.”
- Circulate a memo to company leadership, to remind the leaders of their responsibility to exemplify model behavior on behalf of the company.
Ultimately, it is up to each employer to remember that the legal obligation to protect employees from workplace sexual harassment fully extends to the holiday party, even when the party occurs off-premises. Best practices requires diligent review and updating of policies and practices to ensure a workplace secure from exposure to concerns of harassment.
Arent Fox's Labor & Employment group will continue to monitor developments in this area. If you have any questions, please contact Darrell Gay, Abigail Kagan, or the Arent Fox professional who usually handles your matters.