Bill Cosby…Roger Ailes…Donald Trump…Bill O’Reilly…Harvey Weinstein…Kevin Spacey…Mark Halperin…James Toback…Louis C.K….George H. W. Bush…Roy Moore…Al Franken….Charlie Rose…Matt Lauer…Garrison Keillor. The list of prominent figures accused recently of sexual harassment continues to grow almost daily, leaving little doubt that harassment will be one of the central issues employers confront as 2018 begins.
The law regarding sexual harassment is not new. It has been in effect, largely unchanged, for more than 50 years. Two key factors appear to have changed, however. First, more victims of harassment are willing to come forward and tell their stories. Second, many people are now more inclined than in the past to find complaints of harassment to be credible. The extraordinary number of recent complaints, the multiplicity of claimants in most cases, and the overwhelming evidence (or outright admission) of wrongdoing in most cases has forced many to confront the fact that harassment in the workplace is not a rare or isolated occurrence, but an experience shared by all too many.
Although it is too soon to know the long-term impact that recent events will have on the workplace, one easily foreseeable consequence is, of course, an increase in claims. Not only is an increase in the volume of claims foreseeable, but the probability of claimants prevailing is also likely to be greater than in the past. The burden of proof in harassment cases has not changed- it still rests with the plaintiff- but the willingness of many to believe that allegations of harassment are credible has increased.
Many of the catch phrases used by defendants in the past to dismiss allegations of harassment or marginalize complaining employees, such as “it’s just locker room talk,” “boys will be boys,” “that’s just John” and “it’s a case of ‘he said, she said’ ” (suggesting that allegations are not credible unless corroborated by a witness) will no longer be accepted, and are likely to be seen as evidence of indifference to the issue. Defendants may still succeed in defeating claims with credible denials of harassing conduct, but defendants who seek to avoid liability by acknowledging the existence of certain behavior but dismissing its importance are likely to fare poorly in future litigation.
Just as the frequency of claims and employee victories is likely to increase, so, too, is it logical to anticipate that the amounts awarded by juries and arbitrators are likely to increase. Jurors who are less tolerant of harassing behavior than they were in the past may not only be more likely to find in favor of complaining employees, but also more likely to award substantial damages as a result of their increased sensitivity to the issue.
Prudent employers should be mindful of the recent trend, actively assessing their risk, and implementing measures to reduce it.
Recognizing Indicia of Risk
In the past, many employers comforted themselves with the belief that harassment was a relatively rare and isolated occurrence, something that might be found in other workplaces, but not their own. Recent cases indicate that the problem is pervasive, however. Still, some work environments pose a greater risk than others.
In 2016, a task force appointed by the Equal Employment Opportunity Commission identified certain factors that could signal an increased risk of harassment in the workplace. Recent cases highlight other factors that suggest a heightened risk. Some of the factors identified by the task force, or notable from recent cases, include:
- Workforces with unusually powerful or highly valued employees - Organizations occasionally hesitate to challenge inappropriate behavior by employees who are perceived to be very powerful or valuable, which leads such employees to believe that they are immune from consequences for conduct that would result in discipline for others, and to perpetuate such conduct. Many of the cases publicized recently in the media appear to involve harassers who held extraordinary power, or were perceived as extraordinarily important, in their organizations.
- Homogenous workforce - Harassment is statistically more likely to occur in workforces that lack diversity. Sexual harassment is more likely in workforces dominated by males, for example, while racial harassment is more likely in organizations where one race dominates others.
- Workplace cultures that tolerate or encourage consumption of alcohol - Perhaps not surprisingly, organizations that tolerate or encourage the consumption of alcohol by employees, such as sales teams charged with entertaining clients, receive complaints of harassment more frequently than those that do not permit alcohol on the job.
- Lack of women in senior positions - Statistics seem to indicate that harassment is much more likely to occur in workplaces where women do not hold a meaningful number of senior management positions. When women hold a third or more of the most senior, powerful positions in an organization, however, harassment is less common.
Recent Regulations and Guidance Create a Heightened Standard of Care
California employers have long had an obligation to prevent and promptly correct discrimination and harassment in the workplace. For many years, however, the law did not clearly define the steps that employers must take in order to satisfy those obligations. In 2016, the California Fair Employment and Housing Council adopted regulations that require employers to adopt and maintain policies against discrimination and harassment that contain specific provisions. Among the key policy provisions required by the new law are:
- a complaint process that (a) allows employees to complain to someone other than their supervisor, (b) ensures complaints will be kept as confidential as possible, (c) provides for timely responses, (d) provides for a timely and impartial investigation by a qualified individual, (e) includes some form of documentation and tracking for progress, and (f) provides for appropriate options for resolution and remediation, and timely closure of complaints;
- a specific instruction to supervisors to report complaints to a designated company representative;
- a statement that appropriate remedial action will be taken if misconduct is found; and
- assurance that employees who complain or participate in any investigation will not be subject to retaliation.
Many employers have adopted policies that contain some, but not all, of these elements. Courts may interpret inadequate policies as evidence of an employer’s indifference to harassment, so employers should review their policies and update them as necessary to assure that they comply fully with the new requirements.
In May of 2017, the Department of Fair Employment and Housing issued further guidance to employers on workplace harassment and investigations. The guidance does not carry the force of law, but it reflects the DFEH’s perspective on the standards to which employers should adhere in addressing harassment complaints. The DFEH recommends that anti-harassment programs include the following key elements:
- “Buy-in from the top” - Senior managers should serve as role models for the organization by understanding applicable policies and procedures and demonstrating appropriate workplace behavior. By insisting that senior executives attend training, for example, employers send the message that they consider the topic important and expect others to do likewise. In the words of the DFEH, senior management should not only “talk the talk,” it should “walk the walk.”
- Trained, impartial investigators - Persons who conduct investigations on behalf of an employer should not only be impartial, they should avoid even the perception of bias in order to encourage open discussion of the issues. Investigators should be trained in standard investigatory practices, including proper documentation and assessing credibility, and should possess more than just superficial knowledge of the law relating to harassment. In most cases, employers would benefit by utilizing independent outside investigators (licensed private investigators or attorneys, not human resources consultants) to conduct their investigations.
- Policies and procedures for investigations - The investigation procedure should satisfy basic due process standards by including interviews with the complaining employee, the accused employee, and any other persons with knowledge of facts relevant to the case, as well as a review of any relevant documentation, including email or text messages. Once the relevant evidence has been collected, the investigator should evaluate it and make any credibility determinations that may be necessary if the evidence is conflicting. The investigator should reach factual conclusions (i.e., “John made sexually suggestive comments to Marie”), not legal conclusions (“John sexually harassed Marie”), and report them to the employer so the employer can then determine if corrective action is necessary.
What Should Employers Do Now?
Employers who truly want to prevent prohibited conduct and reduce their risk will take some familiar steps, but do so with greater focus and urgency than in the past, consistent with the increased sensitivity that now exists. Employers should focus their attention initially on the following steps:
- Update policies as necessary - Employers should review existing policies to assure that they comply with recent changes in the law summarized above. Note that the law now requires employers to translate their anti-discrimination and anti-harassment policies into languages spoken by 10% or more of the workforce, and to distribute the policy in a manner calculated to assure that employees actually receive it.
- Provide substantive, serious training - Employers of all sizes, not just those subject to mandatory training obligations under the law, should provide anti-harassment training to all managers, and a modified version of the training to non-managerial employees. Employers can maximize the impact and value of the training by providing it in person, rather than through online courses that typically elicit casual attention at best from participants. Training should include substantive discussion of the law, best practices, and real-world scenarios, and should avoid cartoonish hypothetical case studies that do not promote serious discussion. Employers should not tolerate employees who do not treat anti-harassment training seriously.
- Maintain records - Employers should be careful to maintain records reflecting their distribution of appropriate policies and their provision of training to managers and supervisors.
- Investigate potential problems properly - When employers learn of potential harassment in their workplace (whether through a formal complaint or through other means), they should investigate. Investigations should be conducted by qualified, impartial investigators; human resources representatives are often ill-suited to conduct a proper investigation. In every case, the purpose of the investigation should be to determine whether harassment has occurred, and never to discredit the complaining employee or sweep a potentially sensitive issue under the rug.
- Take meaningful corrective action in response to violations - In today’s environment, employers should demonstrate through actions, and not just words, that they will not tolerate harassment. If an investigation reveals that harassment has occurred, the employer should take corrective action that demonstrates its intolerance for the behavior and is reasonably calculated to assure that the behavior does not occur again. Employers should not shy away from issuing strong written warnings because they do not want to sully a valuable employee’s personnel file, and they should not resist terminating employment in cases involving more serious harassment. The primary purpose of corrective action should be to prevent further harassment and demonstrate intolerance of it, not to avoid alienating the harasser.
How Can Hopkins & Carley Help?
Hopkins & Carley attorneys assist clients in numerous ways with respect to issues regarding harassment in the workplace. Some of the services we provide most often include:
- Advice on responding to complaints - More than ever before, employers should proceed with caution when confronted with information suggesting potential harassment in the workplace. We regularly assist clients in communicating with complainants, selecting appropriate investigators, determining the proper scope of the investigation, assessing the investigation findings, and determining appropriate corrective action.
- Training - For years, we have provided substantive, interactive training to both managers and non-managers on the topic of harassment.
- Representation - When an employee elects to pursue a claim, we represent clients throughout the process, providing both the strongest defense possible under the circumstances, as well as honest and realistic advice about risks and potential strategies for resolution.
- Investigation - Although it is usually inappropriate for attorneys to conduct investigations on behalf of their own clients (because the attorneys owe duties of loyalty to their clients and are not impartial), attorneys are well-suited to serve as investigators, and we can conduct investigations on behalf of companies that have not retained us as their counsel.
If you have questions about harassment, or any other issue relating to employment law, please visit our Discrimination & Harassment page or contact one of our attorneys: