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Are you listening NOW?!

Long before Harvey Weinstein was a household word, I have been warning clients that liability for sexual or other unlawful harassment is a C level management failure. Management is charged with a duty to assure that the company is not unduly exposed to foreseeable liability. Employer liability for sexual harassment has been the law of this land since 1984 and there is no legitimate excuse for taking readily achievable measures to minimize potential liability. The US Supreme Court has given fair guidance to employers on what they need to do to avoid liability and any company that has not at least attempted to follow their guidance is either ignorant or foolish or both.

In order to shield itself from liability for unlawful harassment claims, an employer must do the following:

1) Adapt a policy forbidding unlawful harassment by employees and against employees (by your clients, vendors, etc) and providing clear guidance on what constitutes harassment and how to complain about it:

2) Disseminate the policy to the entire workforce, making sure that you can prove in a court of law that it was received by those employees (signed Acknowledgements are a best practice);

3) Train managers and rank and file employees about their rights and responsibilities with respect to harassment claims. This training should occur at least once every 2 years, though with a stable workforce, more flexibility may be appropriate. I recommend an interactive training with groups of around 20 employees so that there is more likelihood of awareness, understanding and application of the principles after training;

4) The Complaint Procedure should not be burdensome and should have at least 2 higher level discreet (trained) persons to “intake” any complaint. An investigation of each complaint should be undertaken, preferably by someone with appropriate experience. Best Practice is to have “intake” personnel of both genders, and multi-racial if applicable:

5) ALL Complaints MUST be addressed and without perception of retaliation by complaining parties.
That does not mean that you must believe any complaint or take any action that you don’t believe in.

Simply stated, your obligation is to investigate complaints and, if there is merit, then take appropriate action to stop the conduct. You are not required to terminate the accused; you are not initially required to fire a client; You ARE required to use your best judgment to assure that any legitimate complaint is addressed.

If a company does the foregoing, it will be as insulated as possible from harassment claims. If an employee fails to use the complaint procedure without a compelling reason, then that employee is likely barred from suing you. The caveat (always a caveat!) is that this “Affirmative Defense” is only available if you can document you took the measures above, especially #4 and 5. In the event of a complaint, every effort should be made to shield the complaining employee from retaliation or hostility of any kind.

NOW FOR THE HARD PART

The advice above will help you create a compliant policy and procedure. It will help protect you from claims. However, if you view Sexual Harassment as a burgeoning problem that has gotten worse due to society’s natural tendency to evolve at a procrastinating speed, then you should consider an even more proactive approach. I would welcome the opportunity to discuss my ideas for achieving that.

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