Creating a safe environment
Lawyers offer advice on combating sexual harassment
In October, The New York Times and The New Yorker published stories detailing sexual assault and harassment allegations against movie mogul Harvey Weinstein.
The revelations inspired a Twitter campaign, #MeToo, encouraging other women to speak out. The movement unleashed an avalanche of harassment accusations that resulted in the firing or resignation of a number of powerful men, including U.S. Sen. Al Franken of Minnesota, U.S. Reps. John Conyers of Michigan and Blake Farenthold of Texas, and television figures Matt Lauer and Charlie Rose.
In December, the departure of Joe Alexander, the award-winning chief creative officer of The Martin Agency in Richmond, attracted the attention of The Wall Street Journal.
The agency said that Alexander, who had worked on advertising campaigns for clients such as Walmart and Geico, was the subject of a sexual harassment complaint by a female employee. Alexander denied the allegation.
Virginia labor and employment lawyers say these high-profile incidents have put a new emphasis on efforts by employers to prevent sexual harassment in the workplace.
The U.S. Equal Employment Opportunity Commission describes harassment as “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature,” conduct that “explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”
Training to combat sexual harassment has been conducted in workplaces for decades. Nonetheless, an ABC News-Washington Post poll released last fall found that three in 10 U.S. women say they have put up with unwanted sexual advances from male co-workers, and a quarter say they have endured advances from men who had influence over their work situation.
Attorney Thomas R. Bagby urges employers to focus not only on avoiding sexual harassment claims, but on creating an atmosphere that embodies “a safe and comfortable working environment.”
To keep everyone safe, companies should have an up-to-date, well-enforced anti-harassment policy, says Bagby, a partner with Woods Rogers in Roanoke. He reports that his firm is seeing more clients who are seeking to bring harassment cases against their employers. “The key is that any claim of harassment is taken seriously,” he says. “The best way to defend yourself is to be able to say that when we became aware of the problem, we took steps and made sure not to have it again.”
Gregory Branch Robertson, a partner with Hunton & Williams in Richmond, adds that each company needs to have “a statement of policy [on sexual harassment] written in plain understandable English — or Spanish” or any other language prevalent in the workplace. He says companies should have employees sign the policy to acknowledge that they’ve read it and make sure the document is widely circulated by posting it in the workplace and by including it on the company intranet.
Companies should promise employees who make a complaint that it will be handled discreetly but “be careful about promising anonymity, because sometimes you can’t do it. You can be as anonymous as possible, but I don’t think you can promise it,” Robertson says.
Bagby and Robertson emphasize that companies also need to provide every employee with more than one avenue of complaint. Reporting an incident to an immediate supervisor may be the usual step, but not if the supervisor is the one being accused of harassment. Company policy should outline various alternatives: human resources, the legal department or an outside hotline.
And “once you’ve got the policy out there, you need to revisit it on a periodic basis,” Robertson adds. Anti-sexual harassment policies, like many other policies, often are included in an employee handbook that “sits in a pile of paper. Employers have to be diligent.”
The right training
Employers also have to be diligent about providing proper training so that employees understand how to voice harassment claims and managers know how to respond to them, says Karen A. Doner, founding partner of Doner Law PLC in McLean.
“Training is a smart investment and not overly pricey,” Doner says. For example, the cost generally starts at $1,500 for her firm to conduct training.
“Attendance by all levels of employees and management, including the president of the company, should be required,” she says. The participation of upper-level management “sends the message that the company takes these matters seriously.”
Doner also recommends in-person training instead of conducting a class online. “Online programs lack meaningful interaction and the ability to ask questions or engage in discussion,” she says. “In-person training by a professional, with hypotheticals and a Q&A session are ideal.”
Robertson also sees in-person training as more successful because it allows for more than a “check-the-box” experience. Training that affects people’s behavior “requires everyone to step up, pay attention and participate.”
Good training costs time and money, but harassment, he notes, “has consequences. It’s tragic for victims” and harmful to the organizations.
Bagby believes that the publicity about sexual harassment cases has resulted in the issue being taken more seriously.
“Right now, one thing that is making it more effective is that people are seeing that powerful people are having their careers ruined,” he says.
Policy applies to all
When considering anti-sexual harassment policies, lawyers say, employers also must consider customers, clients and third-party vendors.
“If somebody who comes in to fill the soda machine is harassing an employee, then the employer has the same obligation as if that person was an employee,” says Robertson.
“At end of the day, if a third party engaged in that conduct, then the employer is in a position to say to that person’s employer: ‘Do not send that person to our workplace. We need to meet. This causes me to reconsider whether you are the proper vendor.’”
Robertson says he’s seen few examples of employees harassing outside vendors, but the same rules apply. “That type of conduct is not conduct that has a place in the workplace, no matter who it is directed at.”
Worries about sexual harassment extend beyond the physical workspace into social media, Robertson says. Employers should encourage employees to report alleged incidents of harassment not only if they occur on the work site, but also if they occur on social media.
One company’s path
Virginia’s largest industrial employer, Huntington Ingalls Industries, has taken the anti-sexual harassment steps recommended by legal experts.
The Newport News-based shipbuilder has policies and procedures to address sexual harassment complaints, says William R. Ermatinger, the company’s executive vice president and chief human resources officer.
HII provides its own annual training that walks employees through what they can do if they have complaints. And it has an outside hotline that employees can use anonymously.
“If it happens, we take it seriously; we will address it,” Ermatinger says.
But more important than responding to complaints, he says, is preventing them in the first place. That is accomplished by fostering a corporate culture that has zero tolerance for such behavior.
“What is the tone at the top, the tone in the middle, the tone on the ground? Employees listen with their eyes, not their ears. I can say, ‘Do the training, publish the poster.’ We do,” he says. “But more importantly: What experiences are we creating in our workplace that formulate people’s beliefs? Is our behavior consistent with our core ethics?”