Title VII requires employers to prevent sexual harassment in the workplace. When the statute was initially passed in 1964, there was no guidance from the EEOC on how employers were supposed to accomplish this goal. There was no caselaw or national #metoo movement. In contrast, today, there are well-established examples of what constitutes inappropriate physical contact, speech and other interactions in a workplace. While not all poor behavior can be avoided, employers can no longer hide behind a claim that “I did not realize the extent to which the lines had been redrawn” as recently proclaimed by Governor Cuomo. Employers must be knowledgeable about this law and proactively implement policies and protocols to prevent harassment from occurring in their workplace.
In the wake of the Cuomo investigation, below is an overview of five simple steps employers can immediately adopt to create a harassment free workplace and avoid costly litigation.
1. Adopt (or Review and Update) Policies and Procedures Prohibiting Sexual Harassment
Employers must adopt clear policies against sexual harassment and regularly review and update them. In drafting a policy, it is important to:
- Explain the definition of harassment, and provide multiple examples of unacceptable conduct. Physical conduct, unless it is work related, should be clearly identified as impermissible. In particular, hugs and kisses on the cheek – conduct admitted to by Governor Cuomo during the NY Attorney General’s investigation — should be expressly called out as prohibited in the policy. That way, all employees have notice;
- Identify the specific titles, or names, of individuals to whom complaints of harassment can be made. It is best to have at least two individuals listed;
- Encourage all employees to escalate concerns about inappropriate conduct (keep a cold from becoming pneumonia), and mandate all managers to report actual or suspected harassment to human resources, even when it is solely based on rumors;
- Describe the investigation process, and the extent to which it will remain confidential, and caution employees that their cooperation with the process is an ongoing condition of employment;
- Prohibit retaliation against anyone who complains of sexual harassment or assists in a harassment investigation or proceeding; and
- Warn employees that violations of the policy will result in discipline up to and including termination of employment.
When an employee files a complaint of harassment with a federal or state human rights agency, the agency will then send a letter to the company requesting, among other things, a copy of the company’s policies on harassment. Once the complaint is filed it will be too late to draft this policy. Now is the time to review the company policy and update, as needed.
2. Train Employees on the Policy
Adopting a policy is a good first step, but employers cannot simply hand the policy out at the time of hire and believe that their work is done. In the Cuomo investigation, the employees were not aware of reporting protocols and the investigators found “poor enforcement of sexual harassment training.” Employees should be repeatedly reminded of their rights and obligations with respect to unlawful harassment. Regular training on appropriate workplace behavior should take place, including a review of the basic rules against harassment, discrimination and retaliation. Training should be in a group setting and interactive providing specific examples of inappropriate conduct in violation of the policy and to whom reports can be made. Supervisors should also be trained on their additional legal responsibilities to receive and report complaints. A period of time should be set aside at the end of the training for employees to ask questions, and attendance should be taken of all employees who participated. No one should be allowed to sit in and attend for another employee, as was found in the Cuomo investigation. In addition, informal reminders of the policy and related reporting process should be discussed informally throughout the year at team meetings or staff-wide meetings.
3. Establish a Prompt Investigation Process When Complaints Are Made
In the event a complaint of harassment is filed (or conduct that appears to fall within the scope of the policy), the company must respond promptly. This means that the company must have anticipated this event and must have developed a clear and effective investigation process. Throughout the Cuomo Investigation report is evidence that reports of alleged misconduct were either ignored or not handled promptly in accordance with established protocols.
Upon receipt of a complaint, employers should:
- Decide who should conduct the investigation;
- Review the applicable policies and develop a scope of the investigation;
- Consider whether interim steps are required to separate the complaining and accused employees, while the investigation is ongoing;
- Determine what documentary evidence may be helpful and review it;
- Schedule and conduct interviews of the complaining and accused employees and other witnesses in private locations;
- Explain the employer’s anti-retaliation policy to every person interviewed as part of the investigation, and encourage them to report any retaliatory behavior they experience;
- Keep investigation details confidential to the extent possible and remind witnesses to do likewise; and
- Document the investigation, and reach a conclusion that is supported by the evidence.
When complaints are raised that sound like they fall within the scope of harassment, which may in turn trigger legal liability for the company, it is prudent to contact the company’s employment counsel at the outset to discuss the best approach to the investigation.
4. Impose Corrective Action and Discipline
Once the facts have been collected, the employer must make findings. There are usually three possible outcomes: a finding that a violation has occurred; a finding that a violation has not occurred; or, a finding that the evidence is inconclusive one way or another.
If the investigation result is that a violation did not occur, or the evidence is inconclusive, the employer should notify the complaining employee and accused accordingly. In those circumstances, it frequently remains a good opportunity to remind them of the company’s policies and consider other proactive measures to reduce risk of future conflict between the parties.
If the employer determines that its anti-harassment policy has been violated, the company must take appropriate action to effectively end the harassment and provide a reasonable response to the inappropriate conduct. Document the employer’s response in writing and follow up with the complaining employee to let the person know the situation has been addressed.
Once again, at the conclusion of the investigation, remind all employees involved in the process of their right to be free from retaliation.
5. Actively Manage the Workplace’s Culture
The Cuomo investigators found “[o]ver the course of our investigation, most witnesses not in the Governor’s inner circle provided a consistent narrative as to the office culture of the Executive Chamber, describing it as ‘toxic’ and full of bullying-type behavior, where unflinching loyalty to the Governor and his senior staff was highly valued.” An imperfect culture is frequently cited in conjunction with a complaint of harassment as it can lead to employees electing not to raise complaints, stating “we thought nothing would be done about it.”
As noted at the beginning, it is impossible for workplaces to eradicate all poor behavior. But, employers should resist the urge to throw up their hands in defeat when problems arise. There are typically familiar warning signs when a company’s culture is sinking including: an increase in gossiping, open incivility and rude comments, bullying or aggressive interactions between co-workers, and insubordination or general poor work ethic by one or more employees in a particular department. Employers should address abusive and unproductive behavior, even if such conduct does not appear to cross the line into unlawful harassment. Such management measures can involve general reminders about how employees can escalate concerns and a review of the basic expectations for conduct, individual counseling with an employee and/or supervisor or group training. Education and training will help employers create and maintain a workplace with a clear set of expectations and awareness of employee’s rights and obligations, which in turn, invariably leads to improved morale, less interpersonal distractions between colleagues, and the ability to retain the best employees.