It’s a very challenging time for employers dealing with allegations of sexual harassment in the #MeToo era. There’s two different types of sexual harassment. There’s what’s called quid pro quo sexual harassment, which is somebody’s really being asked to engage in some kind of sexual behavior, potentially to get a promotion or something like that.
Hostile Work Environments vs. Sexual Harassment
Then there’s hostile work environment, which is when the environment becomes so pervasive and hostile that a person feels that they’re really unable to continue to work in that environment. Quid pro quo would be an example where, let’s say a manager talks to one of their subordinates and says, “The only way you’re going to get promoted is if you engage in sexual conduct with me.”
The hostile environment sexual harassment is different. That could be, let’s say a manager… It doesn’t have to be a manager. It could be any employee who is, let’s say sending pornography or constantly telling sexual jokes in a way that it creates an environment that’s unwelcome. If there’s a supervisor that’s the accused, then the employer is almost always going to be liable.
Vicarious Liability: When Employers are Liable For Employee Conduct
It’s called vicarious liability, where the employer is going to be liable for the supervisor’s actions if there’s any kind of tangible employment action against the employee. On the other hand, if it isn’t a supervisor, if it’s somebody else, the employer would be liable only if they don’t have a policy to deal with sexual harassment or if they knew about this particular conduct and didn’t investigate it.
How to Avoid Sexual Harassment Liability
So, there’s an opportunity there for an employer to sort of get out of liability if they have policies and procedures and do the right things. What’s different now in the #MeToo era is that the training needs to be very personalized to the workplace, not just a one-size-fits-all. And where maybe people would sit on a computer and watch a video, there needs to be the opportunity for question and answer for seeing maybe potential hypotheticals, to really understand and have that sink in.
Make it A Priority to Investigate Allegations
So, it can’t just be brush it off to, “We’re going to do this because we have to.” It really has to be something now that is a priority. The best way for a company to avoid a lawsuit after there’s been an allegation of sexual harassment is first to take immediate action, to jump right into an investigation. Don’t delay, time is of the essence. So, first step is to jump on it very quickly.
Second is to uncover all the facts, and don’t assume anything. So, when an investigation is going on, whether it’s being done internally by the company or outside by a third party, it’s important for the accuser to be taken seriously and to be treated with respect. And likewise, the accused needs to be given the opportunity to have his or her a response so that there’s fairness.
Constantly Evaluate Your Company’s Culture and Policies
Don’t just continue practices because they’ve been done in the past. Take a fresh look with the goal of having a zero tolerance at the workplace. And find new and innovative ways to educate and train employees as to where the lines are, and how to avoid those lines.