The Workforce After Weinstein: Where Does HR Fit In?

illustration of sexual harassment in the workplace - your businessman touching female colleague's shoulder

It feels like you can’t turn on the news without seeing yet another sexual harassment story. From heavy hitters in entertainment, news, and politics, to athletics and the culinary scene, victims of alleged sexual assault are speaking out in droves—and this wave of action is taking their abusers down. Prominent individuals across multiple industries have been fired or forced to resign following accusations.

But not all sexual harassment scandals involve mega moguls and superstars. The #metoo movement, a hashtag designed to let women self-identify as victims of sexual harassment, has garnered more than 2.3 million tweets from 85 countries, and had over 77 million participants on Facebook.

So, as a business owner and HR professional, this leads to the question—what should we do to address the sexual harassment awareness movement going on across the country?

From an HR perspective, here are some key things to consider:

No employer is “safe.”

No matter how respectful and supportive you are of women and women’s rights, the workplace is unique in that it’s the one of the few venues where people can file a civil claim for sexual harassment, short of situations involving actual assault or battery. For example, you can’t sue the construction crew on the corner for whistling or lewd comments. The protections of the Civil Rights Act are directed at places where there is a potential abuse of power. And though the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, a great deal of sexual harassment claims arise out of unintended offenses, unavoidable imbalances of power, miscommunications, or just lack of training. Such cases can and do still result in tens of thousands of dollars in settlements and attorneys’ fees, regardless of whether the claims have merit. Therefore, any and all claims must be taken seriously, and responded to formally.

Employment Practices Liability Insurance (EPLI) has its limitations.

Many businesses rely on EPLI insurance riders to protect them from sexual harassment claims. But many do not know if they even have this type of protection, let alone what the exclusions might be. And like all insurance, there will be exclusions. That’s if you’re lucky enough to get the insurance. Most insurance companies will not even write an EPLI policy for a company that has had any type of discrimination complaint, even if a claim was never filed, in the last five years. Also, EPLI insurance companies generally will not defend or pay a harassment claim if the claim is brought by a third party. Why is this so important? Because in most states, sexual harassment claims must go through the EEOC first, and the EEOC can then choose to prosecute the case directly, even if you settle with the claimant. If that happens to you, then your EPLI carrier will certainly argue that they do not need to defend you or pay out because it was a third-party claim. The EEOC generally reserves its resources to go after larger employers, but it is not out of the ordinary for it to attack small business owners as well, particularly for egregious cases or repeated offenses.

Secondly, many policies exclude defense coverage for intentional or malicious acts. Think salacious photos and texts on the victim’s phone, or any other sticky breadcrumbs of evidence that make it hard to say, “But I didn’t mean to!” Hopefully it goes without saying that romantic or sexual overtures towards subordinates should be avoided. But understand that having EPLI does not guarantee defense. Your insurance has limits to what it will cover. Know what they are and understand them.

Make sure you train employees and managers.

In a recent news story, you may have heard that the famous chef Mario Batali’s restaurant corporation received complaints about Mario. In their public response, they openly referred to all of the measures and strategies they’d used to address the issue—some of the same measures that we at CEDR have suggested our own members implement.

These measures include providing training for both employees and managers and well-written sexual harassment policies. Remember, in several states, if you have 50 or more employees, sexual harassment training is required, and written sexual harassment policies are mandatory. Your policies should include: sexual harassment definitions, a clear process for an employee to report if they have either experienced or witnessed harassment, as well as assurances of non-retaliation should someone make a good faith complaint.

Take any accusation seriously.

When accusations are made, management must act quickly and reasonably to investigate and document the complaint. Don’t dismiss a complaint just because it may seem unlikely, because the employee only raises the issue once, or because it occurs between employees of the same gender. All conclusions, even if nothing was done wrong, should have a documented response and substantive remedial action if and when the accusations prove to be true. Learn how to properly respond, and don’t be afraid to involve a qualified third party to help.

Corporate hugging is rarely okay.

If you look at websites like Quora, you will find lots of sincere posts from males asking how to tell a female co-worker to please stop hugging them without hurting the other person’s feelings. You’ll also find men asking, if a female co-worker keeps initiating hugs with them, does it mean they are showing an interest in a sexual or romantic relationship? There are uncertainties on both sides of the gender gap.

On a personal level, I posted this on Quora in response to the following:

“Is it inappropriate for men and women to hug at work, given the potential that it might not be wanted by the woman?”

I’m a hugger. Not a lingering hugger but just a quick hug. That said, as a male business owner, I am very careful about offering a hug, and have over the years retrained myself. Outside of the workplace, if you are not an employee, you are probably going to get a hug. It’s who I am, and it doesn’t matter if you are male or female because I am an equal opportunity hugger. But at work, I’ve retrained myself, even though it was not easy.

For more on hugging at the workplace, check out this video from the Wall Street Journal: Corporate Hugging: A Field Guide.

So where do we go from here?

Make sure you are prepared. Find and offer sexual harassment training. Have a plan and clear policies in place. This is an important step, but it also presents a real-world problem:

If I train my whole team, some employees may take what they learn and identify something going on in my office(s) as a problem. What if it’s me?”

For all employers, including myself, that is a scary place to even think about ending up. This is elephant-smack-dab-in-the-middle-of-the room type of stuff, and something most of us would prefer to avoid if at all possible.

But beyond that fear and discomfort, what I must acknowledge is that women, at every level in the workforce, are reporting that in life, and at work, they’ve come away from situations and entire careers feeling objectified at best, and assaulted at worst. I think we can all see that ignoring potential problems is not going to work any longer.

What I also know is that most problems are best dealt with in an open and honest way. I believe that training and good policies help to facilitate a process whereby everyone involved can check in. If there are issues, they need to be addressed. And it’s better to find out now than further down the line.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace counsel about a specific issue with an attorney or HR expert. This material is meant to provide information that is believed to be current as of the date of this post.

Dec 21, 2017

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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