HOT TOPICS INSTALLMENT #2 – The Reignited Issue of Sexual Harassment in the Workplace

 By: The Saqui Law Group

In 2017, the topic of sexual harassment in the workplace not only dominated the news networks and everyday conversation, but it has also created a domino effect of sexual harassment and sexual abuse complaints against high profile men in politics, the media, and entertainment. With increasing frequency, men and especially women, are sharing their experiences of alleged sexual harassment and assault. In October of 2017, a flood of complaints against producer Harvey Weinstein quickly resulted in his ouster from the Weinstein Company, a company he founded and ran until he was removed by its Board of Directors.

The Weinstein scandal has reignited and elevated discussions of sexual harassment in the workplace to an extent not seen in decades. It is shining a spotlight on the prevalence of harassment in the workplace, particularly by those in positions of power who use that power to take advantage of others. Although individual abusers have been the chief target of complaints, those companies that are seen as having allowed the abuse to occur, or having acted to protect the alleged harassers at the expense of alleged victims, also find themselves in increasingly hot water. In these times, it is more important than ever that employers go above and beyond to fulfill their legal obligations by having sexual harassment policies in place, conducting sexual harassment training with employees, and taking necessary steps to prevent sexual harassment. Sexual harassment comes in many forms and varying degrees, and as the current trend demonstrates, a long-simmering environment of sexual harassment can erupt suddenly.

This year, it will be more important than ever for employers to consider their sexual harassment policies and reflect whether they can effectively prevent a sexual harassment claim from occurring. While employers cannot eliminate the possibility of employees occasionally acting inappropriately, there are reasonable steps an employer can take to prevent unlawful harassment, including having proper policies describing and prohibiting sexual harassment, notifying employees of their right to make complaints, ensuring employees know that complaints will be promptly investigated and remedial action taken, and that complaining employees will not be subject to retaliation. It is extremely likely this trend will trickle down to employers all over the country, and the courts will see an uptick in sexual harassment claims. Employers need to be prepared and ensure they are minimizing the risk of a harassment claim and in the event a claim comes forward, the employer needs to be prepared to handle the complaint seriously and thoroughly.

Enforce a Zero-Tolerance Harassment Policy for All Levels

A zero-tolerance harassment policy will discourage harassing conduct in the first place and will help protect employers against claims that the employer has fostered or tolerated an unprofessional workplace culture in which sexual behavior is common. Having a strict zero-tolerance harassment policy means an employer prohibits all forms of harassment and that any confirmed harassment will result in appropriate remedial action, making no exceptions for the degree of the alleged harassment or the alleged harasser’s position within the company. All employees, both management and rank-and-file, should be provided with a copy of the zero-tolerance harassment policy. Additionally, employers should strongly consider providing training on the policy to all employees, not just supervisors. Further, complaints of harassment should be treated equally, no matter who brings forth the claim and who the complaint is made against.  Discounting certain complaints because of who is making them, or who they are being brought against, is likely to lead to mistakes being made and legal action against the employer. Having a zero tolerance policy in place and enforced is the best tool in the employer’s belt for dealing with problems associated with sexual and other forms of harassment.

Provide a Multichannel Complaint Procedure and Assure Employees that They Will Not Be Subject to Retaliation for Making or Participating in a Harassment Complaint

A key part of preventing sexual harassment in the workplace is ensuring that employees know they can and should come forward to identify harassing behavior and that they understand that they will not be retaliated against for doing so. In shocking numbers, the United States Equal Employment Opportunity Commission (“EEOC”), a federal agency that administers and enforces civil rights laws against workplace discrimination, estimates that three out of four people who encounter sexual harassment do not report the incident either out of fear they will be retaliated against or that no one will believe them.[1] Therefore, it is critical that employers have an anti-retaliation policy in place so that employees feel comfortable reporting harassment in the workplace. Employees need to be aware that making a harassment complaint or participating in an investigation will not result in any form of retaliation.

One key component of maintaining an effective sexual harassment policy is making sure that you have an open door policy about reporting sexual harassment. In the past, many employers who encouraged the reporting of harassment made the mistake of requiring employees to first report complaints to their direct supervisors before going to Human Resources or another member of management. The problem, of course, is that it is oftentimes the employee’s direct supervisor who an alleged victim contends is guilty of engaging in harassing behavior. In such a situation, it makes sense that the employee choose to remain silent rather than tip off the alleged harassing supervisor. Instead, employers should have a multichannel complaint procedure that provides employees with at least two separate avenues for making harassment complaints. Employees should be able to bring a complaint to various members of management or HR and not just one specific individual.

An employer’s complaint policy should also clearly indicate the steps that will be taken in response to an employee bringing forth a harassment complaint. This will create a system for employers to follow in response to a complaint being made and weed out any confusion the employee may have as to how the complaint will be investigated. The investigation should be prompt, followed by remedial action if harassment is found to have occurred.

U.S. Legislator’s Response to the Weinstein Scandal

A bipartisan group of lawmakers in both the United States Senate and House of Representatives have introduced legislation that would ban pre-dispute arbitration agreements of sexual misconduct claims. The bipartisan bills would allow those who allege sexual harassment or gender discrimination in the workplace to take their claims to court rather than forced arbitration.

Farmworker’s Response to the Weinstein Scandal

In solidarity with the women and men of Hollywood who came forward with their experiences of sexual harassment, 700,000 female farmworkers have written a letter of solidarity stating they stand with actors against sexual assault. The letter is written on behalf of female farmworkers by Alianza Nacional de Campesinas, an organization comprised of current farmworker women, along with women who hail from farmworker families. Although Hollywood may have reignited the discussion of sexual harassment in the workplace, it is now affecting other industries, including agriculture.

New Sexual Harassment Laws in California Effective 1/1/2018

Governor Jerry Brown signed two new bills effective January 1, 2018, that employers should be aware of that are related to sexual harassment, SB 396 and SB 295.

Under SB 396, employers with 50 or more employees will be required to modify mandatory sexual harassment training to include discussion of gender identity, gender expression, and sexual orientation. Additionally, employers will be required to post an amended poster on discrimination developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace. Copies of the amended poster in multiple languages are available online at the Department of Fair Employment and Housing’s website.

Under SB 295, Farm Labor Contractors (“FLC”) will be required to follow additional compliance requirements in sexual harassment prevention and reporting training as a part of the California FLC licensing process. FLCs will be required by law to provide sexual harassment training for agricultural employees in the language understood by those agricultural employees. Additionally, FLCs will have to provide the Labor Commissioner with the number of agricultural employees trained and a complete list of materials used to provide the sexual harassment training. If the FLC fails to adhere to the new law, the Labor Commissioner is authorized to issue citations and assess civil penalties of $100 for each violation relating to failure to comply with the training requirement.

Under SB 179, California is the first state to legally recognize non-binary as a gender. This allows individuals to update their gender on their birth certificate, driver’s licenses, and identity cards without undergoing clinical treatment or getting a court order. In turn, employers may see employee requests of using particular pronouns and the employers should not willfully violate the employee’s wish to be called a different pronoun. Failure to recognize an employee’s preferred pronoun could result in a lawsuit.

[1] Feldblum, Chai and Lipnic, Victoria. U.S. Equal Employment Opportunity Commission Select Task Force on the Study of Harassment in the Workplace, June 2016.