By Reggie Gay
Managing Shareholder, McNair Law Firm
You cannot turn on the TV, listen to the radio, or browse the Internet without learning of the latest harassment scandal. Many prominent individuals are being fired, with companies being exposed to potential liability based on claims of harassment. Surprisingly, a number of these claims were the result of conduct years ago.
Also of interest is that the current climate has nothing to do with any change in the law. In fact, the law regarding sexual harassment has been essentially stable for a number of years. Since the 1990s, it has been fairly clear that an employer can be held liable for harassment by a supervisor or someone with authority over an employee. This liability is subject to some limited defenses. In essence, the defense by the employer will need to show that he or she did not know about the harassment and took effective actions to keep harassment from occurring. What has changed is the public’s perception of such conduct. Accordingly, employers need to realize that we have turned a corner in regard to sexual harassment and will probably never go back to the way things were. In general, this is a good thing; however, employers need to be extra vigilant in protecting themselves from potential liability.
One of the reasons for the current focus on harassment may be generational. For many years, the Baby Boomer generation dictated workplace conduct. Women entered the workplace in large numbers during the 1970s and 1980s. Baby Boomers learned to work in the male-dominated culture and had to work in an environment that had been controlled by men for generations. Unfortunately, this subjected many females to various forms of harassment. At that time, almost all management and supervisory positions were held by men. This enabled them to subject the women to their authority, and the women felt they had little choice but to tolerate the inappropriate behavior in order to keep their jobs. This was openly viewed as something you just have to deal with.
Moving forward 30 years, women now make up a considerable portion of the workforce and fill many management positions. As a result, women no longer have to tolerate bad behavior. In addition, as Baby Boomers are aging out of employment and Millennials and other younger groups are replacing them, the culture in the workplace has changed drastically. Millennials are less likely to tolerate inappropriate conduct and have no fear in reporting bad behavior. From the time they were young, Millennial women were told they are equal to men and can do anything a man does. In addition, the public perception of harassment has changed drastically over the last few years. This generational transition is part of the reason that the change is here to stay.
So what can an employer do to protect him/herself? As a starting point, anti-harassment policies should be endorsed by the highest level of management. All supervisors, managers, and executives must be on the same anti-harassment page. A zero-tolerance approach should be adopted and written harassment policies need to be developed and distributed to all employees. Avoid legalistic definitions, and use examples of inappropriate or unacceptable behavior. These policies should encourage victims to come forward as soon as possible. The policy should be clear that it covers both employees and non-employees and that it is broader than just the work place. Employers should emphasize that no retaliation is permitted.
In addition to a written policy, ongoing training should be conducted on a regular basis. Supervisors and management should also receive separate training from rank-and-file employees. Investigations must be conducted for all complaints, whether written or oral. Remember that harassment can be male to female, female to male, female to female, or male to male. These investigations should be thorough, unbiased, and completed as quickly as possible. After the conclusion of the investigation, appropriate action should be taken to eliminate any unacceptable behavior. The discipline should be timely and commensurate with the offense. No longer is it permissible to slap an offender on the hand and tell him or her not to do it anymore.
In conclusion, in light of the current environment, it is important for every employer to review its policies, training, and investigation processes to ensure that it is doing all that it can to prevent harassment and encourage reporting. Failure to do so may result in liability on the part of the employer and lead to significant public relations issues.
Reggie Gay is the Managing Shareholder of the Upstate Unit of McNair Law Firm in Greenville. His primary areas of practice include labor and employment law, workers’ compensation, litigation and appellate advocacy. Reggie represents business and governmental clients by providing consultation on employment and other matters, conducting preventive training, and litigating in both federal and state courts.