Since the Harvey Weinstein allegations broke, many men and women in Hollywood and across the political arena have come forward with similar allegations against prominent figures, sparking national conversations about sexual misconduct. Given this recent influx of sexual harassment claims against power players, and the well-known individuals who are speaking out against them across social media, it is likely that more employees in the workplace will be emboldened to assert such claims against their co-workers or managers. The question that needs to be at the forefront for businesses as we enter 2018 is, “How do we minimize the risk of liability from such claims?”
Generally, to have an actionable claim for sexual harassment, the conduct must be unwelcome and the work environment must be both objectively and subjectively offensive, meaning that upon considering all of the circumstances, a reasonable person standing in the employee’s position would find it hostile or abusive, and the employee must also perceive it to be hostile or abusive. We all work in stressful environments and perceive things differently; thus, while a verbal outburst at a co-worker of the opposite sex might be viewed as a means to accomplish a task, that co-worker may view it as gender harassment. A determination of whether sexual harassment is occurring in the workplace must be made by exercising common sense and being sensitive to the situation at hand.
The courts act as the gatekeeper in determining whether sexual harassment claims satisfy the legal standard to establish a violation of the law. Recently, for instance, the California Court of Appeal ruled on a sexual harassment claim made by a female physician against the hospital where she worked. See generally Levi v. Regents of University of California (2017) 15 Cal.App.5th 892. The physician claimed three instances of harassment: 1) After voicing her opinion regarding the residency program, the chair of the department stood up, banged his fists on the table, and said he could remove her as the program director; 2) After questioning the chair regarding a policy change, he became angry and said, “I think I made myself clear”; and 3) Upon telling the chair she was unavailable for a meeting, he yelled, “I insist that we meet now.” She also presented evidence that the chair called women names, such as stupid and obese. The Court of Appeal determined, however, that there was no indication the three incidents occurred because of the physician’s gender. His comments were rude, but were not sexual and did not target her gender. With respect to name calling, there was evidence that he also disrespected men and that many left because of his behavior, so the name calling was not associated with gender discrimination. The Court of Appeal found the female physician’s gender harassment claim could not be sustained.
While some employees may have difficulty establishing such claims, as evidenced by the Levi case, when they are successful the risks of liability are severe. Here is a list of strategies to help prevent actionable sexual harassment claims:
- Put a clear, written “no sexual harassment” policy in place, or make sure your current policy has been updated to meet California’s regulations. Your policy must state there will be no tolerance for sexual harassment, all complaints will be thoroughly investigated, and that if the complaint turns out to be valid, the violator will be disciplined or terminated.
- Conduct an objective investigation of any complaints. Many employers only conduct a cursory investigation, using in-house personnel that are biased, or do not have the training or skills to investigate. Consider engaging outside resources to conduct an objective, professional investigation.
- Talk to your employees. There is no better way to find out how your employees are doing and to determine whether they have complaints than to get out on the floor and talk to them.
- Train your employees. California law already requires that employers with 50 or more employees provide supervisors with sexual harassment training every two years, but consider including all of your employees in a sexual harassment training session.
- Cultivate a professional environment and use common sense. If something feels wrong, it probably is wrong. Keep work events professional, and be sure to educate your work force on how to behave. This could include providing workplace ethics training.
In sum, sexual harassment prevention should always be taken seriously by businesses and employers; perhaps now more than ever, given the flood of recent allegations against public figures and prevalence of social media. Unremedied harassment can be widely publicized in a matter of seconds and wreak havoc on your business. Be proactive in reducing the risks from harassment claims.