Monday, November 7, 2011

Sexual Harassment Revisted

Sexual harassment has taken over headlines again.

First, the 20th anniversary of the Anita Hill/Clarence Thomas controversy just passed.  To rewind, in 1991 when U.S. Supreme Court Justice Marshall decided to retire, then-President George Bush appointed Thomas to the U.S. Supreme Court. During the the Senate's confirmation process, Hill went public with her allegation that Thomas had sexually harassed her while both worked for the Equal Employment Opportunities Commission (EEOC).

Second, in the past few weeks, Republican presidential hopeful Herman Cain's campaign has had to answer charges that he sexually harassed several women while he was the head of the National Restaurant Association in the 1990s.

Sexual harassment has always existed in the workplace, although it receives much more attention in legal circles than it does in mainstream dialogue.  By law, a company is supposed to train and educate management and staff on what harassment is, what do if a worker is a victim or witness to harassment, and how the company will handle the report or complaint.  Generally, a company should have a written anti-harassment policy covering all forms of harassment, including sexual harassment.  Typically, a company puts such a policy in an employee handbook or on a company intranet.  The key elements of an appropriate investigation include:

  • interviewing the alleged victim, harasser and any witnesses; and
  • taking prompt remedial action if the allegations can be substantiated.
The law also creates a strict liability situation (i.e., no defense) in some situations, such as where a supervisor is the alleged harasser and the company has failed to provide any form of policy or guidance on how to report the conduct.  A company can also be held liable where a member of management learned of alleged harassment and failed to take action to investigate or address the complaint.

A best practice is for a company to bring in outside assistance, such as legal counsel, to perform annual training on harassment and to review existing policies and procedures.  During training, it is a good idea to explain the current state of the law, to review the company's anti-harassment policy and to reiterate a zero tolerance for any form of harassment.

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