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The #MeToo Movement is Pushing Companies to Look Closely at Sexual Harassment Prevention and Gender Bias

How has the #MeToo movement impacted your business? For many, the rise of the #MeToo movement in 2017 has led to more women and men publicly talking about sexual harassment they have experienced in the past or are currently experiencing at work. Companies clearly do not want to find themselves defending against sexual harassment lawsuits. How can you minimize this risk?

In order to encourage a company culture that respects everyone and does not tolerate sexual harassment, business owners must be on the lookout for potentially harassing behavior and gender bias, and train both leaders, supervisors and employees on what constitutes harassment and what to do if someone experiences it or witnesses it.

What is Harassment?

The #MeToo movement brought to light the fact that many people do not share the same definition of harassment. Employers and their employees should understand that harassment is unwelcome verbal, written or physical conduct that degrades or shows hostility or dislike toward the recipient because of race, color, religion, sex, national origin, age, sexual orientation, disability, veteran/military status or workers’ compensation status. The harassment becomes sexual harassment when it includes unwelcome sexual advances, requests for sexual favors and other physical or verbal conduct of a sexual nature. The sexual harassment could be quid pro quo, which means submission to the harassment is an implicit or explicit condition of employment; or the sexual harassment could be hostile environment harassment when the conduct interferes with the employee’s work or creates a hostile work environment. Oftentimes, rejection or submission of the sexual harassment affects the victim’s employment opportunities.

But these clinical definitions can be hard to identify. In real life, what does harassment look like?

How Can an Employee Harass Someone?

There are many ways an employee could be sexually harassing someone, sometimes with behavior that the employee didn’t realize crossed the line. Some examples include:

  • Sending emails to co-workers with sexual, racial or other offensive content
  • Commenting on a co-worker’s attire or looks (short skirt, tight pants, hairstyle)
  • Bringing in or sharing at work offensive pictures or cartoons about sex, race, religion, sexual preference or other offensive topics
  • Having a romantic relationship with a subordinate
  • Retaliating against someone who brings a complaint to human resources.

This is list not exhaustive. If an employee feels as though his or her co-worker or supervisor has crossed the line, the employee may file a complaint with HR, and even file a lawsuit.

Sexual harassment does not just mean harassment by one person against another person of the opposite sex. Same-sex harassment was recognized by the United States Court of Appeals for the Sixth Circuit in a case brought by five male truck drivers involving a male supervisor at a Kentucky truck depot.

How to Investigate a Complaint

When someone brings a complaint to the attention to a representative of the company, it is imperative the company follows proper procedures when investigating. This includes complaints the company believes are likely false. The organization must follow the same procedures and conduct a full investigation. This protects the accused employee, supervisor, and employer from liability.

The Steps to Take

Company representatives performing the investigation of the complaint should take several steps, including:

  • Set a professional tone for the interview with the employee who filed the complaint and take every complaint seriously.
  • Try to put the complainant at ease by gathering facts and not making judgments.
  • Get answers to who, what, where, when, why and how.
  • Investigate the complaint as soon as possible.

Questions to Ask

When meeting with the person who filed the complaint, ask specific questions to get as much detail about the interactions between the accuser and the other employee. Those questions include:

  • Who committed the alleged inappropriate conduct?
  • What exactly occurred or was said? When was it said? Is it ongoing?
  • Where did it occur? How often?
  • How did it affect you? Has your job been affected in any way?
  • How did you react? What response did you make when the incident occurred? How about afterwards?
  • Does anyone else have relevant information? Was anyone present? Did you tell anyone about the incident? Did anyone see you immediately after the episode(s) of alleged inappropriate conduct or comment occurred?
  • Do you know if the accused person engaged in the same or similar conduct with anyone else?
  • Is there physical evidence of the episode, such as a video or text message?
  • How would you like to see the situation resolved?
  • What other information would you like the company to know?

It is crucial that the company asks the accuser to draft a written statement detailing all of his or her allegations. Give him or her as much time as needed to write it. This protects the employer by allowing the company to show that it has addressed all the accuser’s allegations and prevents later fabrications and exaggerations.

If the company investigates a complaint and determines the accuser filed a false complaint, the HR department can discuss next steps to take against the employee who made the false complaint.

The Impact of #MeToo

As a result of more people feeling empowered to speak out about sexual harassment, companies must be prepared to deal with any complaints or allegations of harassment. Any allegation of sexual harassment must be investigated and taken seriously.

Companies should crate a harassment reporting policy and make sure all employees are familiar with it.

Supervisors and HR personnel should be trained to report on any allegation of sexual harassment, including those observed on social media or considered just to be a rumor. Federal claims for discrimination based on sex expire after less than a year, but Kentucky state law claims for discrimination based on sex have a five-year statute of limitation.

A Complaint Can Lead to Litigation

An employee who feels a company did not do enough to protect them – either before or after a complaint is filed – or did not adequately resolve the harassment may file a lawsuit. The plaintiff can seek to recover lost wages, reinstatement if they were terminated as a result of the harassment, front pay, damages for mental and emotional distress, and punitive damages.

Managers and supervisors under Kentucky law can’t be held individually liable for discrimination but can be held liable for retaliation or “aiding and abetting.” Federal and Kentucky law holds an employer “strictly liable” where a worker suffers a “tangible employment action” for refusing a supervisor’s sexual overtures. Therefore, if a manager or supervisor harasses an employee and the harassment results in the employee being fired, demoted or transferred to another position, or not promoted, then the employer is automatically liable.

The employee may accuse the supervisor of assault and battery, intentional infliction of emotional distress, false imprisonment, invasion of privacy and wrongful discharge.

Overall, it is important to be compassionate and caring toward employees. Many times, a lawsuit is filed because the employee feels like no one is listening to them, they are not being treated fairly, or not being taken seriously.

Take Steps to Fight Gender Bias

With the heightened awareness of sexual harassment in the workplace due to the #MeToo movement, companies are beginning to take a harder look at how employees are treated and the overall company culture. One piece of that includes gender bias. Companies must make sure not only to create environments free of sexual harassment, but also that their leaders, managers, supervisors and employees are aware of any gender bias at play in workplace decisions. This preference or prejudice toward one gender over the other could be conscious or unconscious and may lead to issues among the employees.

Studies have shown that men are more likely than women to be granted flexible work schedules. The gender bias of a supervisor may play a factor when evaluating employee work performance too.

One way to work against any biases is for the leaders of the company to determine what it takes overall to succeed in the organization. Once the company leaders outline the factors or traits that lead to success, this should be clearly communicated with all employees as well as defined in evaluation metrics.

Companies must coach their decision-makers to make choices based on strong foundations. Asking “why” is critically important to removing any bias from decisions. Following these steps will allow a company to set itself up for transparency and cut down or even end decisions based on preconceived notions about a gender.

Another way to counteract gender bias within an organization is to ensure diversity in its leadership. Companies likely have qualified, skilled female leaders in their organizations today. Company leaders must find them and help them develop their talents, so that they can one day be a valued leader in the company.

Be Proactive

Companies need to be cognizant of the culture of their workplace. Work with your attorney or legal team to determine what steps your company needs to take to ensure it is preventing sexual harassment and gender bias in the workplace. Being proactive can save time and money investigating complaints and defending litigation, and lead to a place at which people are proud to work.

  • Partner

    Blaine is a partner in the firm's Louisville office and a member of the Labor and Employment Practice Group. Blaine advises clients on employment law matters arising under a broad range of state and federal laws affecting employers ...

  • Associate

    Kimberly J. O’Donnell is Senior Associate in the firm’s Labor and Employment practice group where she advises and represents clients in matters involving a broad range of employment issues. She focuses her practice in ...

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