Workplace Harassment: An Offer You CAN Refuse

As we head into the season of office parties and (occasionally excessive) holiday cheer, two recent events in the news serve as timely reminders of the obligations of employers to protect their employees from workplace harassment.

First, no political campaign in the modern era is complete without a fresh set of allegations of sexual misconduct by a candidate, and this year is no exception. In past weeks, the former CEO of Godfather's Pizza and current candidate for the Republican presidential nomination has been accused of making an "offer you can't refuse" to a series of women who later signed confidential settlement agreements releasing their claims of sexual harassment. The high-profile nature of these claims has resulted in endless debates over their veracity on talk radio and the blogosphere and an increased spotlight on workplace harassment in general.

The second, and even uglier, event in the headlines is the horrific story out of Penn State University involving allegations of abuse by a former coach. Unable to come to terms with the sheer evil of the alleged actions themselves, most commentators have chosen to focus on the thorny issues of what various Penn State coaches and officials knew or should have known about the alleged perpetrator and what more they could have done to prevent any abuse from being repeated.

The common theme of these two events is the recognition that the leaders of businesses and other organizations of today have a duty both to refrain from engaging in abusive or harassing conduct themselves and to ensure that such conduct by others is not tolerated on their watch.

Although workplace harassment has been recognized as unlawful for over two decades now, employers continue to miss opportunities to protect their employees from harassing conduct and themselves against the costly lawsuits that often result. As an early holiday present from Ice Miller's Labor and Employment Group to you, below is an acronym (AT RISK) employers can use to remember six actions they should take to protect themselves and their employees from workplace harassment this holiday season and during the year to come:

Announce: Employers must publicly announce and affirm their commitment to maintaining a workplace free of sexual harassment and harassment based on other protected characteristics. This commitment should be communicated in written harassment policies published wherever the employer posts employment policies, including employee handbooks, bulletin boards and intranet sites.

Train: Employers must provide regular training to its employees on workplace harassment, including on what conduct is prohibited, how harassing conduct may be reported and what steps the employer will take to investigate such reports. All new employees should receive training on the basics of the harassment policy during the orientation process. Supervisors and managers should receive more in-depth training periodically on their responsibilities as agents of the company to maintain a harassment-free workplace.

Report: Employers must provide multiple avenues for employees to report potential harassment, including to their direct supervisor, the Human Resource or Personnel Department or any other management official to whom the employee feels comfortable reporting the conduct. Moreover, as Penn State officials can testify, management officials have a duty to report their own observations of questionable conduct up the line or to address it themselves, even if no official complaint is made by the employees involved.

Investigate: Employers must investigate reports of potential harassment, no matter how incredible or minor they may seem at first blush. The extensiveness of the investigation may vary according to the seriousness of the claims, but a typical investigation should include interviews of the accuser, the accused as well as any witnesses either party is able to identify. The interviews should focus on the five W's (who, what, when, where and why) concerning the harassment allegations and be carefully documented for use in subsequent legal proceedings.

Sanction: Employers that discover that unlawful or simply unprofessional conduct did, in fact, occur should impose disciplinary sanctions on the offending employee, with the degree of sanctions depending on the severity of the conduct determined to have occurred. Although termination is not required for all violations of a harassment policy, courts are more likely to expect termination when threats or unwanted touching of a sexual nature are involved. The ultimate test for the level of sanction is whether it is effective in preventing the conduct from recurring.

Keep it confidential: As challenging as it may be, employers should do their utmost to keep both the identity of the accuser and the outcome of the investigation as confidential as possible. Employees who report harassment and then find themselves the subject of the workplace rumor mill may view themselves as having been violated twice, and may be more likely to file suit if they perceive the workplace becoming hostile toward them following their report.

Employers that take these simple steps not only will reduce the risk of costly legal claims, but, more importantly, will create an environment in which employees of all characteristics can use their talents and energies to meet customer needs free from the distraction of workplace harassment.

For assistance in drafting written harassment policies, providing anti-harassment training, and responding to claims of harassment, please contact Michael Tooley or any member of Ice Miller LLP's Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.