Beware: uptick in sexual harassment claims possible

Whenever the topic of sexual harassment reaches mainstream media outlets, people are bound to take notice. And when sexual harassment allegations involving a prominent public figure like Bill O'Reilly appear in the headlines of just about every major national and local media source, companies' employees are undoubtedly aware.

Given that this is perhaps the most high-profile situation involving sexual harassment allegations in decades, expect employee awareness about the issue to be raised for the foreseeable future. And the heightened interest in this matter may cause an increased number of sexual harassment allegations both meritorious and not in the weeks and months to come.

For this reason, make sure your organization takes proactive steps to ensure a workplace environment free of harassing behavior, and is prepared to swiftly and thoroughly address any allegations of improper conduct that do arise. Consider taking these steps:

Establish effective workplace policies

The defense of many harassment claims begins with an examination of company policies. By this point, nearly every employer in the country has a set of written (or electronic) employment policies including a prohibition on sexual harassment. An employer should be able to easily demonstrate that each new employee was issued, or has access, to these policies; then any doubt about whether employees were informed of rules will be eliminated.

But are existing harassment policies effective? To be most effective, they should contain:

-a clear message that the organization has "zero tolerance" for unlawful harassment;

-a definition of what constitutes prohibited harassment;

-several examples of conduct that would be considered in violation of company policy;

-a call for employees to immediately report conduct they witness or experience they believe to be harassment;

-several avenues for employees to register complaints, including alternate reporting mechanisms if they believe their immediate supervisor is part of the problem; and

-a promise that employees reporting harassment will not be subject to retaliation.

Get on the training train

It is vitally important that personnel receive policy-related training. It's a good practice to include a review of policies at the orientation stage for all new employees, but it's perhaps even more helpful to train managers on how to properly receive complaints and what they should do if a complaint falls in their lap (hint: immediately get human resources involved). In fact, a number of states require sexual harassment training, so check with a labor and employment attorney if you are unsure about what is required.

Investigations are vital

It is often hard to determine exactly when a harassment complaint is received, as employees may not use the words "harassment" or "hostile work environment" when lodging a complaint (or, conversely, may incorrectly use these terms when describing minor workplace conflicts). For this reason, trained human resources professionals or managers should speak with the complainant to determine the full extent of the problem as soon as possible. It is generally advisable to get the employee to provide a written account of the complaint with as much detail as possible. This will help ensure that all allegations are investigated.

If it is determined that a complaint includes a possible harassment component, the human resources team should launch a swift and thorough investigation using impartial personnel. The investigation team should ask open-ended questions to get the full story, but not be afraid to ask specific follow-ups to nail down particulars. The team also should review any pertinent email messages, text messages, other electronic communications or other documentation that might be relevant.

During the investigation, the employer may want to ensure that the employee making the complaint is not forced to work alongside the employee who is alleged to have violated the policy. Some employers choose to place the employee accused of harassment on leave pending the outcome of the investigation; such leave can be paid or unpaid depending on the circumstances.

Finally, the investigation should be kept as confidential as possible. Don't promise the accuser that the complaint will not be shared with anybody else. However, the employer can inform the accuser that it will make every effort to keep the matter confidential to the extent possible, but that the legal obligation to fully investigate the matter may lead to the inevitable disclosure of information.

Make timely follow-up decisions

If an employer concludes that a violation of its policy has occurred, it then must take immediate and appropriate corrective action designed to ensure that the offending employee no longer repeats the improper behavior. Several options are available; the most common include a verbal warning, written warning, suspension, mandatory training, demotion, and of course, termination of employment. Be sure to document whichever course of action is chosen, and inform the complainant that the company has taken steps designed to ensure he or she won't face the reported conduct in the future.

If the company is unable to substantiate the allegations, inform the employee. Don't tell him or her that officials believe the complaint was a lie (unless, of course, solid proof exists that the accusations were fabricated completely). Instead, let him or her know that the company appreciates the matter being brought to its attention, but that after a thorough and impartial investigation, the team was unable to uncover evidence substantiating the allegations. The employee can be informed that he or she is welcome to lodge further complaints if similar behavior occurs, while reminding the employee who was the subject of the investigation that he or she remains subject to company policies.

Get legal counsel involved

Finally, bring workplace lawyers into the loop as soon as possible. In a perfect world, company officials will work together with a labor and employment attorney to develop effective harassment policies long before any situations arise. However, even if a lawyer was not involved at the drafting stage, it is a good idea to involve one once a complaint has been raised. The guidance and feedback an attorney can provide, behind the scenes or not, will be invaluable as an employer seeks to handle all of its legal responsibilities while creating a workplace free of harassing behavior.

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Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers' interests in all aspects of workplace law. Contact him at 503-205-8044 or rmeneghello@fisherphillips.com, or follow him on Twitter @pdxLaborLawyer.

Published: Fri, Apr 28, 2017

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