Workplace Harassment: What’s New, and What’s Not

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No legal topic is more top of mind than sexual harassment, as reports and accusations of high profile harassers (and worse) come out virtually every day. Heck, few legal topics have ever been as top of mind as harassment is right now.

For employment lawyers – and experienced employers – the topic is decades old. The scope and severity of the reports may or may not be surprising depending on where one sits, but many aspects of the topic are old hat. Largely since the U.S. Supreme Court held that sexual harassment is an illegal form of discrimination under Title VII, the primary federal workplace discrimination law, employers seeking to minimize liability have taken steps to address sexual harassment. Likewise, some – but obviously not all – aggrieved employees have made complaints, both through internal processes and through enforcement agencies such as the federal Equal Employment Opportunity Commission (EEOC) and the Ohio Civil Rights Commission (OCRC).

Even the most vigilant employers would not claim to have completely “figured it out.” I have put together many seminars for employers that cover multiple legal topics, often with breakout sessions providing choices for attendees. No matter how many new, cutting edge topics we provide, it seems that workplace harassment is a timeless hot topic.

Nothing about recent events changes what has long been black and white advice to employers. (And as most readers will know, a lot of employment law is not black and white.)

  • An employer has an obligation to take reasonable steps to prevent workplace harassment.
  • One of those reasonable steps is having a workplace conduct policy distributed to employees.
  • That policy should not be limited to sexual harassment. Harassing employees on the basis of any lawfully protected class is unlawful discrimination.
  • The policy should provide more than one avenue for an aggrieved employee to report harassment. This is to avoid a situation where harassment is not reported because the victim is uncomfortable reporting it to a single point of contact (which in some cases could even be the harasser).
  • When potential harassment is brought to the employer’s attention, it needs to promptly gather the facts and, based on those facts, take appropriate action. (Exactly what that action is may not always be so black and white. Definitely talk to your employment lawyer about that one.)
  • After the fact-gathering, the employer should communicate to the complainant what it has done. Not necessarily every single detail, but that it has gathered facts, made certain conclusions, and is proceeding accordingly.
  • It is unlawful to retaliate against somebody for making a complaint in good faith, even if the complaint is not determined to be well founded.

But recent events are news for employers. While the law and the advice have not changed, awareness of the issue is at an all time high. Whether this proves to be a historical moment that will cause more harassment to be reported long into the future, in the short term it seems highly likely that there will be more harassment complaints. Many, of course, will be founded in fact. A few will not be, and will be a trendy “go to” for a bad employee who senses he/she is near termination, giving some real victims a bad name. In both such scenarios, plaintiffs’ lawyers can be expected to invoke hot button famous names to judges and juries in seeking relief for their clients. And no employer will be able to claim ignorance of the existence of the issue. (That last part was probably already true, but even more so now.)

The stakes have been raised. For smaller, entrepreneurial companies that have fewer policies, some of whom may think playful banter and a little sexual tension is part of their unique culture: the EEOC, the OCRC, judges, and juries will not care if you are tolerating behavior that is widely viewed as sexual harassment. You need to take the steps noted above. Your culture can survive just fine without sexual innuendo, risqué screen savers, and what you think is welcome physical contact.

It also bears noting that another aspect of the issue that may be changing is the extent to which federal and other law prohibits harassment and other discrimination on the basis of sexual orientation. While many municipalities (including Columbus and many others in Ohio) and states (not Ohio) include sexual orientation in the list of legally protected classes, it is a very hot topic in federal courts as to whether Title VII provides this protection. The U.S. Supreme Court may have an opportunity to resolve this issue soon. Of course, many employers seem to have made this decision for themselves regardless of legal requirements, but it is a subject that bears watching.

What also bears watching is whether the long-standing current legal regime and advice changes over time in light of recent events. While it is far from new, I am mindful of this blog post advising women not to report sexual harassment. (From recent stories it seems that at least some women have been taking that advice.) The current regime gives employers significant protection from liability provided they maintain certain processes as set forth above. It seems likely that courts and legislatures, at least in some jurisdictions, might take a fresh look at the regime and change a business’ obligations.

Stay tuned. In the meantime, if you cannot check all of those bullet points above, get busy.

Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.

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