Addressing and Preventing Sexual Harassment in the Workplace
By Azam Nizamuddin
Sexual harassment is not a new cause of action or a new tortious phenomenon. In fact, it was addressed back in 1986 when the case of Meritor Savings Bank v. Vinson1 was decided by the US Supreme Court. However, sexual harassment became a subject of national discussion later with the public spectacle of the confirmation hearing of Justice Clarence Thomas who was accused by his former colleague, law professor Anita Hill of unwanted sexual advances. As more women have entered the work force and with the rise of women in more corporate leadership positions, one may have reasonably assumed that this issue was no longer prevalent or of serious concern. However, the recent and rapid downfall of powerful men in the business, political, and entertainment industries has brought this issue back into public and professional discussion once again.
The Problem of Sexual Harassment
In a recent survey by the New York Times, nearly 50% of America’s working women say they have experienced sexual, verbal or physical harassment at work.2 The Times also reported that one-third (1/3) of men reported their behavior at work as “objectionable” or “sexual harassment.”3 This number increases based upon the questionnaires and the type of questions posed in surveys.4
Sexual harassment is not limited to the upper echelon of the corporate world or in glamour industries like Hollywood or television news, but it affects blue-collar workers as well.5 According to the EEOC, sexual harassment has become endemic in the workplace. Indeed, the new Acting Chair of the EEOC, appointed by the Trump administration, stated recently, “This happens to women in workplaces all over the place…You look at the companies that, just last year where the EEOC brought suits. It’s food processing plants, a correctional facility, a car dealership, restaurants, agriculture. It’s across industries.”6
To prevent tortious or bad behavior toward women and other protected classes, we first must identify the problem. The area of sex and gender discrimination has many facets and can often be confusing to the non-specialist. Hence, sexual harassment is broadly defined in two ways:
1. Unwelcomed sexual advances, requests for sexual favors or verbal or physical conduct of a sexual nature when it is made as a term or condition of employment; or
2. Unwelcomed sexual advances, requests for sexual favors or verbal or physical conduct of a sexual nature when it unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.7
The first category is often referred to as the quid pro quo or “this for that.” This typically refers to a situation where a demand is made on the victim for sexual favors in return for an employment related benefit. The second category refers to a workplace environment which courts have described as hostile. This includes an intimidating situation which can be both pervasive and abusive.8
While the issue of sexual harassment has grabbed headlines, and become fodder for journalists and pundits, it can have devastating consequences for victims and the workplace
environment. There can be personal liability for the tortious conduct. There can be criminal charges filed against the perpetrator. Additionally, it may have a personal impact which could affect relations with family, leading to divorce or estrangement from children. Also, it can cost long term reputational damage and destroy successful careers. Companies should take special care to prevent the practice of sexual harassment within its ranks. This is important for several reasons, including:
1. Lawsuits can result in costly damage awards;
2. Automatic employer liability for harassment by supervisors;
3. Supervisors who don’t stop sexual harassment may cause harm to the company brand;
4. Sexual harassment harms operations and people; and
5. Sexual harassment is just plain bad for business.
Providing a Non-Harassment Culture
Recently the federal Equal Employment Opportunity Commission (“EEOC”) issued some preventative guidelines on sexual harassment.9 According to the EEOC’s recent Select Task Force on the Study of Harassment in the Workplace, there are 5 ways that can enable a non-harassment environment. They include:
• Committed and engaged leadership;
• Consistent and demonstrated accountability;
• Strong and comprehensive harassment policies;
• Trusted and accessible complaint procedures; and
• Regular, interactive training tailored to the audience and the organization.10
To fully address the problem of sexual harassment, we should begin not merely with the law and training, which we will address shortly, but creating a company culture free of sexual harassment is vital to success. In other words, to develop and maintain a harassment-free environment, the policy and practice must stem from the top, including both C-Suite and middle management. Additionally, the managers and supervisors play a crucial role both in company culture but also strict adherence to laws and compliance regulations. With the national rise of sexual harassment complaints, all managers and supervisors should learn about why sexual harassment is of grave concern.
Executives should discuss the problem of sexual harassment not only in policy and handbook manuals but in their meetings and trainings. For example, we are beginning to see senior executives discuss the problem of sexual harassment in their board meetings as well as managerial training meetings.11 This makes sense given how soft skills and emotional intelligence have become an integral part of corporate management and leadership training over the years. As human relations management is an integral part of management and employee training, it also should include how we comport with our co-workers particularly with respect to protected classes such as gender.
In addition to providing leadership messaging as suggested above, it is important to have a multi-faceted approach which pervades the climate of the company. In other words, merely having boilerplate language on a website and employee handbook is no longer sufficient. The company policy should include workshop training of non-harassment policies, disincentives for policy violations, communications skills, review of existing non-harassment policies, and a robust investigation process for alleged violations.
Training should not only involve lectures but should also include multi-media with a testing component. For example, Loyola University of Chicago, where I teach, provides a video
presentation on anti-harassment policies which includes policies, fact-based scenarios and examples of harassment behavior, and questions which further test the attendees’ ability to understand and participate in the anti-harassment scheme.
Furthermore, the training for non-harassment should include everyone. This includes board of directors, C-Suite and executive leadership teams, non-executive management and supervisors, human resource teams, compliance, and corporate law or legal departments. In order to build credibility with employees, the training should be ideally conducted by qualified professionals and tailored to specific industries. At the end of the day however, leadership on any issue begins at the top. If it is okay for the executives or upper management to engage in this conduct, then it will be perceived by lower level managers and employees that is acceptable for them.
Having a patent and pervasive written policy of no harassment goes a long way toward promoting a culture of zero tolerance for this type of behavior. In fact, while most companies have no harassment policies in some format or another, it is important to include it in all types of employee handbooks and manuals and, of course, the company website. These policies should be periodically shared with all employees during the year. Additionally, all employment agreements, particularly executive agreements should be updated to include a “no harassment” provision which provides disincentives for such behavior including the loss of bonuses, severance packages, and ultimately termination of employment.
Investigating Sexual Harassment Claims
Despite all the training and information that a company can provide, unfortunately there will be times when certain individuals violate these established policies. When that occurs, there needs to be a robust investigation of claims and allegations. Again, this is where company culture makes a different.
The company should create an environment where misconduct can be reported in an easy, safe, and confidential way. Internal reporting should be encouraged and simplified. It should ensure multiple channels of reporting. If the reported offense is confirmed, then there should be a relatively swift remediation response. A thorough and detailed assessment and investigation will also reveal whether the allegation or incident is an isolated event or whether it is systematic within the organization. For example, Loyola University of Chicago provides a reporting hotline which is safe and confidential for victims of sexual harassment.12
Depending on the severity of the allegation, it may involve the triggering of an established crisis protocol or an incident response plan. Depending on the case, seeking an investigation by outside counsel may well be advised. For example, when allegations against Fox News’ Bill O’Reilly surfaced last year, 20th Century Fox hired the law firm of Paul Weiss to investigate the alleged abuse.13 A swift and public response provided by 20th Century Fox in the wake of the allegations of sexual harassment by Roger Ailes and Bill O’Reilly sent a message that Fox News was serious about the allegations and intended to take remedial steps.
One of the reasons Fox News moved so swiftly was because when allegations of sexual harassment involve a high-profile individual, the issue will often be tried in the court of public opinion through cable and broadcast television, and social media. Hence, developing a media strategy to stay ahead of the story will be advantageous instead of waiting for a prominent newspaper like the Chicago Tribune to publish a front-page story about your company. This will require identifying a capable spokesperson in anticipation of a public statement.
Termination and Litigation
Depending upon the outcome of the internal or outside investigation, the company may opt for termination of the employee. This option is significant because a toothless policy which lacks a disincentive to prevent sexual harassment is neither feasible nor desired. Taking real and palpable action to ensure that such conduct does not occur again should be the focus of the company protocol. Hence, termination is always an option after an investigation demonstrates improper conduct, particularly if it is considered a “for cause” termination as defined in an employment agreement. Companies can enhance the termination process and avoid future litigation by an aggrieved employee by making sure to thoroughly adhere to the termination process contained in an employment agreement or company policy. Such written policy should include providing fair treatment to the terminated individual, having in place warning or notice opportunities, conducting a fair and thorough investigation, and following through with consequences.
Also, in situations where the aggrieved victim opts for litigation, seeking the guidance of outside counsel is crucial. Anytime there is litigation, it is well advised to obtain an early case assessment which considers the legal claims and theories, the potential damages including whether punitive damages are available. Furthermore, all stakeholders should be included in any discussion of settling claims including the board of directors, C-Suite executives, and heads of relevant business units or departments. While confidentiality agreements and arbitration clauses have become standard in employment disputes and settlements, bear in mind the current movement to do away with confidentiality provisions by state legislators.14
In conclusion, a company culture which provides a safe, secure, harassment free environment where employees can freely achieve their desired goals and responsibilities will be far more successful and avoid the corporate pains than ones that fail to do so. As the EEOC has outlined, a committed and engaged leadership is vital for this process.15 There must be consistence and demonstrated accountability to prevent sexual harassment. All policies must be well known and be comprehensive, and with enforcement capabilities. There should be a trusted, safe, and confidential protocol for administering complaints of sexual harassment. A sustained and periodic training program which is implemented from the top of the corporate chain to the bottom will enhance credibility and sound corporate culture. Finally, it is essential that leadership consistently practices what it preaches.
1. 477 U.S. 57 (1986)
8. Seyfarth Shaw Webinar on Sexual Harassment in the Workplace on January 4, 2018.
11. Seyfarth Shaw Webinar on Sexual Harassment in the Workplace on January 4, 2018.
14.https://www.cbsnews.com/news/new-jersey-lawmakers-seek-to-ban-non-disclosure-agreements-for-sex-assault/; http://www.philly.com/philly/news/politics/pa-lawmakers-push-ban-on-non-disclosure-agreements-for-sexual-harassment-20171115.html; http://tucson.com/news/local/arizona-lawmaker-seeks-to-eliminate-non-disclosure-agreements-in-sexual/article_b58caf41-fd68-595c-ba5c-b6df320ee330.html; https://www.nysenate.gov/newsroom/in-the-news/brad-hoylman/harvey-weinstein-scandal-spurs-lawmakers-go-after-non-disclosure.
Azam (“Az”) Nizamuddin is General Counsel with the American Trust Corporation and Chief Compliance Officer for Allied Asset Advisors in Oak Brook, Illinois. Previously, he practiced commercial litigation and family law with large firms, small firms, and as a solo practitioner. He is an active member of the DCBA, and serves on the DCBA Business Law Section. He also serves on the ISBA Corporate Law Section and previously served on the ISBA ARDC Committee. He was appointed to the Illinois Supreme Court Access to Justice Commission, Language Access Committee. He is also Adjunct Professor at Loyola University and frequently lectures on the intersection of law and religion.