By: Russell L. Lichtenstein, Esquire
If you have begun to read this piece, even without a subtitle you know what it is about. In the weeks since the Harvey Weinstein story broke in the national media, the subjects of sexual misconduct, sexual harassment and sexual assault in the workplace have become a headline of our national discourse. There is little doubt that we have only learned about a fraction of the allegations, accusations and inevitable denials to come. Every business owner, HR professional and leadership team member needs to pay close attention to what is unfolding nationally as it certainly has the capacity to substantially impact your business.
Employers need to anticipate and prepare for a significant uptick in complaints of sexual harassment and workplace sexual misconduct. However, a mere passive recognition of these issues will not protect your business, the morale of your employees or your financial future.
A few simple steps can put you in a much better position to assess and respond to allegations, complaints and rumors of sexual harassment and sexual misconduct in the workplace.
I Know We Have A Policy … Somewhere
While I am certain that the majority of those reading this article have in place anti-harassment/discrimination policies, I am equally certain that if you were to ask your managers and supervisors to recite the substance of your policy, most would have a failing grade. An initial measure of preventive medicine is to dust off that old policy binder, locate the anti-harassment/discrimination policy and review it with your HR team and employment counsel. Make sure that the policy is clear and unambiguous. Make sure the policy provides for several alternatives for reporting. Unfortunately, many times the individual engaging in workplace misconduct in violation of the policy is a member of the leadership team who has been designated to receive complaints. Make sure your policy has been distributed to all employees. Make sure your management team is trained on the policy as a policy is worthless if those responsible for its enforcement do not understand it.
Investigate All Complaints And Claims, Even Those You Do Not Believe
One of the unfortunate consequences of the increased attention on sexual harassment and sexual misconduct in the workplace is that there are likely to be individuals who attempt to make claims that are false either in terms of facts or context. It is very tempting for employers to pay either no or less attention to those claims which they simply do not believe. This is a huge mistake, HUGE. For those of you that have been in the HR space for any length of time, you recognize that one of the principal precepts in this area is that it is the claim that you do not pay attention to that will come back to bite you. Do not let that happen. Your policy should contain an investigation protocol which is followed in every instance in which a complaint or claim of sexual harassment or sexual misconduct in the workplace is made. There should be no exceptions. The investigation protocol should require appropriate documentation and finally a report to the individual making the complaint. To the extent that you conclude, after an appropriate investigation, that an individual lied or falsified allegations of sexual harassment or misconduct, you should always speak with your employment counsel before you make any further decisions.
Train, Train, Train
Critical to responding to, investigating and, ultimately, defending claims of sexual harassment and sexual misconduct in the workplace is training. In this context, training includes training employees on what the policy is, training the management staff on their obligations to react and report consistent with the policy, and making sure that the individuals that are investigating a complaint or claim of sexual harassment or misconduct have the training and skills that they need to promptly, thoroughly and effectively investigate these claims and complaints.
Keep Your Eyes And Ears Open
More often than not, your leadership team will have a sense that something is “going on” in the workplace before a formal complaint or claim is brought to your attention. If you become aware of a developing situation, do not wait in your office for someone to come to you; address it. Have your HR professionals approach those involved and determine whether or not there is an issue or a problem. Information gathered at this stage, more often than not, becomes very helpful in the event that a later claim is brought.
If You Are Going To Talk The Talk, You Have To Walk The Walk
I hate this phrase. Having said that, it encapsulates the notion that if an employer is going to have an effective anti-harassment/discrimination policy, that policy has to be enforced uniformly, consistently and without exception. An individual does not get a “pass” on a complaint of sexual harassment because he or she happens to be the highest producing [fill in the blank] you employ. Further, the failure to enforce a policy selectively inevitably leads to a workplace where people are reluctant to come forward because they believe that “nothing will be done.” Do not let that be your workplace.
The Employment Law Practice Group at Cooper Levenson is uniquely qualified to assist employers in all aspects where the law and employment intersect. The lawyers in the Employment Law Practice Group regularly provide day-to-day and issue-to-issue compliance advice to our clients to guide them through the maze of employment laws, rules and regulations, helping our clients in making decisions which avoid litigation and let businesses focus on their business.
RUSSELL L. LICHTENSTEIN is a Partner and Executive Committee Member at Cooper Levenson. He chairs the Labor & Employment Practice Group. Mr. Lichtenstein is rated “AV” by Martindale Hubbell, is certified by the Supreme Court of New Jersey as a Civil Trial Attorney, is certified as a Civil Trial Advocate by the National Board of Trial Advocacy and has been awarded the designation of “Super Lawyer” every year that award has been issued. Mr. Lichtenstein is available in the firm’s Atlantic City office. His direct dial number is (609) 572-7676
