All employers are aware of the new climate surrounding sexual harassment in the workplace. #MeToo and other viral movements have led to a more than 12% increase in sexual harassment claims according to the Equal Employment Opportunity Commission (EEOC) and a 22% leap in the amount of money paid out in settlements by employers from $47.5 million in FY17 to $70 million in FY18. This represents a dramatic shift in the way employers must deal with the possibility of a sexual harassment claim.
While most employers might have a sexual harassment policy filed away in their office, we would guess that there are very few who properly distribute this and other anti-harassment or nondiscrimination policies to new or current employees. For most employers, sexual harassment and discrimination are afterthoughts to the immediate needs of conducting routine business. However, this all changes the moment a charge or claim is filed against your company.
If a claim is made against your company, your lawyers will ask is if you have an up-to-date sexual harassment/nondiscrimination policy, whether these policies are distributed to new employees, and whether current employees receive regular training on these subjects. If your company does this, that’s great, but the lawyers will also want to identify whether your management staff are themselves qualified to conduct this type of training.
So what can an employer do to protect themselves against claims of tolerating sexual harassment or discrimination?
1. Create or update your sexual harassment/nondiscrimination policies
2. Distribute policies to all employees and add to onboarding procedures
3. Train supervisors on policies and how to address complaints or issues
4. Establish prompt investigation procedures for any and all complaints
5. Consistently apply policies and procedures to everyone
The steps above outline the best way to begin addressing sexual harassment and discrimination issues in the workplace. In addition, employers should note that their policies should seek compliance with the Federal EEOC guidelines as well as any state regulations. For instance New York recently enacted new legislation to deal with the issue of sexual harassment which more or less forces employers to follow those 5 steps.
In New York, effective October 9, 2018, all employers were required to distribute their anti-sexual harassment policy and complaint form, and provide training on the policy and how to report a claim within a year by October 2019. Similarly, California is now requiring all employers with 5 or more employees to conduct training on sexual harassment every 2 years beginning January 2020. These states have recognized that employers must be more deliberate in their crafting and distribution of these policies and are seeking to ensure that they do so. It may only be a matter of time before similar laws are adopted across the northeast.