It’s a sobering thought that your company could someday become a target of a lawsuit. It’s an even more sobering thought that yours could be one of the many companies covered in the press because of a sexual harassment lawsuit. Unfortunately, based on the statistics out there, these aren’t entirely hypothetical situations for employers to consider.
At the end of 2018 the EEOC reported that lawsuits filed against employers based on alleged sexual harassment rose by 50% – largely coinciding with the rise of the #MeToo movement. The EEOC also reported collecting $70 million dollars from employers for victims – that’s an increase of $23 million from the previous year.
Don’t be another company on the list that is targeted for a sexual harassment lawsuit, take steps now to protect your company legally. There are a lot of things you can do to protect your company, including creating a positive culture. But that’s pretty vague advice – good, but doesn’t give you a concrete direction to move or where to start.
So let us help you script the critical moves to help create a stellar culture for all of your employees. Here are three things you can do right now (if you haven’t already):
Have an anti-harassment policy in place
It may sound obvious. For those companies that already have it in place, awesome. But a surprising number of companies don’t have anything formal established. Part of this is because many states have no sexual harassment law and don’t require it. If you already have something in place, now would be a good time to review it and make sure it’s up to date and in compliance with your state’s regulations. You can find them here.
Regardless of why you may not have something established, get something down that’s written, reviewed, and includes training your employees on what is and is not appropriate workplace behavior.
This is important because “In 2012, the US Supreme Court ruled that if the employer exercised “reasonable care” to prevent and correct any sexual harassment quickly, the company wasn’t responsible.” So having a policy in place and training employees on it regularly goes a long way in protecting your company from any potential lawsuits.
Have a simple system for employees to file a complaint.
Too often employers implement a system that is never used for a variety of reasons like it’s too complicated, it’s not readily available or understood by employees, it is unfairly tilted against the victim, or isn’t confidential. In 2017 members of Congress introduced a billto change the way sexual harassment was reported because the system was so convoluted and had so many stipulations, it actually blocked victims from reporting allegations.
As an employer, if you have a system in place for employees to file a complaint, this is one more layer of protection for your company and an important tool for your employees to feel safe.
The Faragher-Ellerth defense is based on two court cases in the late 90s that said employers were not liable if a supervisor harassed a subordinate if three criteria were met:
- There was no form of retaliation against the employee for reporting the harassment or refusing any request for sexual favors. The employee wasn’t fired, demoted, reassigned, or otherwise put in an unfair work environment.
- The employer exercises reasonable care to prevent and correct the harassment. This is where step number 1 comes into play, having an anti-harassment policy in place that your company follows when harassment is reported will go a long way.
- The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm (for example, by not taking advantage of reporting procedures outlined in an anti-harassment policy). If your company has a simple, secure, and confidential way for employees to report harassment, you’ll be able to keep your company from being liable for poor decisions your employees may make.
- However, an important caveat is that this system really needs to work and be something the employees can use. Many systems that are out there are not confidential enough and can result in the alleged harasser finding out and could lead to retaliation or an overall lack of faith in the system.
Find a system that’s secure and will truly work for your employees.
Foster an open dialogue
It may be a hard topic to discuss, but the more you can create a positive culture of communication between all of your employees will help prevent harassment.
Don’t beat your employees over their heads by making them watch anti-harassment trainings every month, but you could start with giving your human resources department the resources they need to be effective. Bring them in to help shape the culture and drive important decisions at your company.
If you don’t have an HR department filled out yet? Start talking with your employees, get to know what works for them and what doesn’t. Frequently, problems with harassment at a company can be a result of another, deeper issue. Perhaps, like at Uber, part of the problem with their “bro culture” that created a toxic workplace for the women there was because there was a lack of diversity in leadership. Talking with your employees and encouraging them to talk with each other can help prevent those kinds of problems.
The last reason this could be a helpful tip for your company?
“Employees are encouraged to inform the harasser directly that the conduct is unwelcome and must stop.” By encouraging your employees to talk with each other you can help them get started on the path to stopping or preventing harassment from escalating to a lawsuit. ”