The recent #MeToo movement on social media has given voice to the victims of sexual harassment in Hollywood, Washington, and the news media. It may also have raised concerns about gender discrimination and sexual misconduct among your own staff. As an employer, how should you respond to the #MeToo sexual harassment claims of your employees?
Illegal Sexual Harassment Under The Title VII Of The Civil Rights Act
Title VII of the Civil Rights Act prohibits gender discrimination and sexual harassment in the workplace. It applies to employers with 15 or more employees, including:
- private employers,
- state and local government,
- employment agencies, and
- labor unions.
The law requires employers to take reasonable steps to prevent and respond to allegations of unwelcome sexual advances, requests for sexual favors, and other sexually motivated words or actions. Not every request for a date or gender based joke requires action. Instead, the alleged conduct must involve:
- quid pro quo employment decisions based on a person’s receptivity to sexual advances,
- unreasonable interference with a person’s work performance, or
- creation of an intimidating, offensive, or hostile work environment.
Are Employers Responsible For Sexual Harassment By Their Employees?
Most of the headlines surrounding the #MeToo movement have involved owners, executives, and other high-level business managers. Title VII clearly positions where individuals are alleged to have used their positions of power within the company to coerce sexual favors from lower-level employees.
However, as an employer, your role in responding to sexual harassment claims against rank-and-file employees is less clear. A 2013 U.S. Supreme Court case, Vance vs. Ball State University, 133 S.Ct. 2434, suggests that an employer may not be held responsible for the actions of its employees unless it was put on notice of the unwanted sexual behavior and failed to reasonably respond to the complaints. Reasonable investigation and response is necessary even when:
- the victim and the harasser are the same sex,
- the harasser is the victim’s co-worker, or even certain non-employees,
- the report comes from a witness rather than the victim directly, or
- the victim is not economically harmed by the conduct.
How To Respond To #MeToo Sexual Harassment Claims
The Equal Employment Opportunity Commission (EEOC) enforces Title VII. When investigating sexual harassment claims, the EEOC recommends employers consider the context surrounding the allegations, including:
- whether the victim clearly indicated the conduct was unwelcome,
- the severity of the conduct or statements,
- the frequency of the conduct or statements,
- the relative positions of power of the alleged victim and the alleged harasser,
- the performance history of each party,
- the conduct history of each party,
- the circumstances surrounding the report.
It may be beneficial to request a written statement of the time and nature of each incident, along with potential witnesses’ names.
To avoid liability, employers may wish to adopt a formal sexual harassment reporting policy. Such a policy should outline how employees may report alleged sexual misconduct and ensure that managers and supervisors address the allegations seriously and in a timely manner. Confidentiality in the investigation is also critical to creating a workplace environment where employees feel safe when reporting behavior by co-workers and even superiors.
Resolving Sexual Harassment Claims
There is no one ideal resolution that fits every sexual harassment claim. However, should an investigation indicate that sexual harassment did occur, an employer is legal required to take steps to prevent it from reoccurring. Depending on the circumstances, an employer may consider:
- assigning either the victim or the harasser to another location or shift,
- reassigning the victim to a different supervisor or manager,
- transferring the victim or harasser to a different position,
- requiring the harasser to attend gender sensitivity training or other remedial instruction,
- formally disciplining the harasser,
- suspending or terminating the harasser.
Employers have fairly wide latitude in responding to supported allegations of sexual harassment. However, that should never include adverse employment actions against the victim or witnesses. Retaliation for filing a sexual harassment complaint is illegal under Title VII. Even if the allegation turns out to be false, termination could result in an independent EEOC action for gender discrimination.
Many employers are facing internal sexual harassment claims in the wake of the #MeToo movement. Knowing how to respond can be the difference between inconvenience and an EEOC investigation.
Contact Top Bloomfield Hills Attorneys Today
The Cronin Law Firm has experienced attorneys to aid with whatever legal issue you’re facing. If you are an employer facing internal sexual harassment complaints, contact The Cronin Law Firm today to schedule a consultation.