When the Big Boss is Accused of Sexual Harassment

By Kathleen J. Jennings (kjj@wimlaw.com)

One of the big stories in the news this week concerns accusations of sexual harassment (and worse) against the head of a Hollywood production company. Various sources claim that the allegations against this man have been an open secret for years. There is even a memo written by a company employee to company executives about the sexual harassment and the “toxic environment” it created. From what we can tell, the company did nothing until the allegations were made public in the media.

What should a company do if it receives a complaint of sexual harassment against a high-level executive? As in the case of any other complaint of sexual harassment in the workplace, it should not ignore it. Instead, it needs to conduct an investigation to determine if the complaint has any merit.

When the complaint concerns a high-level executive or the head of the company, it is best to retain a neutral person outside the company to conduct the investigation, preferably someone who is trained in doing this kind of investigation. An investigation by a company employee may be influenced by the concern about the impact of the investigation on his or her career at the company. The investigator should be able to conduct the investigation without pressure or limitations imposed by the accused executive or any other management employees on the investigator or potential witnesses. There should be a full and complete investigation of all of the facts. Based on that investigation, the company’s Board of Directors can make an informed decision whether discipline or other action against the executive is necessary. Ideally, the decision about whether to take action against the accused, and if so, what action to take, should be made with the assistance of counsel.

However the investigation comes out, the company also has a duty to protect the complainant and any participants in the investigation from retaliation by the accused executive and/or people acting directly on his/her behalf (we call this the “cat’s paw” theory of liability). One way to ensure this is to add an extra layer of review of any employment decisions made by the accused executive that affects the complainant and any participants in the investigation.

Alternatively, the company can do as the Hollywood production company appeared to do: pay off complainants and sweep the matter under the rug. We see how that turned out.

Pro tip: When conducting harassment prevention training, make sure that the company’s management and high-level executives participate in the training just like all other company supervisors and managers. Their presence at the training sessions demonstrates the company’s commitment to a workplace free of harassment.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Is an Employer Required to Terminate an Employee Who Has Been Accused of Sexual Harassment? Not Necessarily.

By Kathleen Jennings (kjj@wimlaw.com)

By now, most everyone is aware of the termination of employment of a television personality who has been accused of sexual harassment. According to news reports, his former employer has reached settlements with five women who had complained about sexual harassment or other inappropriate behavior by him. The agreements totaled about $13 million. The termination followed an investigation by an outside firm into additional allegations of harassment.

This same company also saw the dismissal of its CEO due to sexual harassment allegations.

So does this mean that a company should always terminate an employee who is accused of sexual harassment? It depends on the circumstances.

When an employer becomes aware of a complaint of harassment, it has a duty to investigate. If the investigation reveals that the complaint has merit, the company should take prompt, effective remedial action. The goal of any remedial action is to make sure that the harasser does not commit further harassment in the workplace. The most effective way of achieving this goal is to terminate the harasser. Whether the employer uses this ultimate punishment should depend on some of the following factors:

  • How serious was the harassment? As a general rule, incidents of unwanted touching of another, especially private parts, need to be dealt with most severely. If the harassment was verbal, there is a difference between one or two off-color jokes and profane, obscene or distasteful comments directed at another employee or his/her anatomy.
  • What is the harasser’s employment history? Is this a long-term employee who has never been in trouble? Or a fairly new employee?
  • Has this employee been accused of harassment before? If there is already one verified complaint of harassment against the employee, then any future verified complaints mean that he/she has not gotten the employer’s message that harassment in the workplace is unacceptable, and termination may be the most logical option.
  • What is the harasser’s response to the accusations? Is he/she defensive? or remorseful? If he/she refuses to admit that he/she did anything wrong, even when there is solid evidence to the contrary, there is a risk that the behavior may occur again.
  • Is there another punishment, such as demotion, suspension without pay, disqualification from bonuses or profit-sharing, or the like, that will get the harasser’s attention enough that the behavior will not happen again?

If an employer decides to give an employee one more chance, any punishment should be supplemented with harassment prevention training. That training may be extended to others in the same office, department, or facility if the employer determines that there is a systemic problem. In addition, if possible, the harasser and the recipient of the harassment should be physically separated.

Finally, regardless of what action the company takes against the harasser, everyone must be reminded that the company will not tolerate any retaliation against any employee who makes a good faith complaint of harassment.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Do You Want to Give the EEOC Input on its Proposed Enforcement Guidance on Workplace Harassment? You Have 40 More Days to Comment.


The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has extended for 40 days the public input period on its proposed enforcement guidance on unlawful workplace harassment. The proposed guidance is now open for public input until March 21, 2017.
This extension of time is an opportunity for businesses to try to shape the EEOC’s enforcement policy under the new administration, which many consider more “employer-friendly” than the previous administration.

The proposed guidance, which is the product of extensive research, analysis and deliberation, explains the legal standards applicable to claims of unlawful harassment under federal employment discrimination laws. The laws enforced by the EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age or genetic information. While EEOC guidance does not carry the force of law, it serves as a reference for agency staff, including during the investigation of discrimination charges.

Some of the provisions that are of concern to employers include a provision that states that using a pronoun inconsistent with a worker’s gender identity in an offensive or persistent manner can amount to sexual harassment, and a call for “civility” training, which may conflict with some mandates on employee free speech issued by the National Labor Relations Board.

Public input may be submitted online at this location on www.regulations.gov until midnight on March 21, 2017. Alternatively, members of the public may send written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. All input will be posted publicly on www.regulations.gov, so please do not include personal information that you do not want made public, such as your home address or telephone number.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.


 

“Locker Room Talk” in the Workplace

By Kathleen Jennings (kjj@wimlaw.com)

At a recent training session, a male employee asked me the following question: “If a bunch of guys are working together and we want to tell dirty jokes, what is the harm if no females are around?” My response was that this type of talk is not appropriate for the workplace, regardless of who is around to hear it. Employees are free to tell all the jokes they want to when they are outside of work, but when they are at work, they need to follow company policies, including the policy against harassment in the workplace. Harsh? Maybe; but my job is to protect this company from sexual harassment claims.

The reality is that a company that is subject to Title VII of the Civil Rights Act of 1964, as amended (generally, a company with 15 or more employees) has a duty to prevent and address sexual harassment in the workplace. That means a company should have a clear, well-disseminated written policy against harassment in the workplace and a user-friendly procedure that employees can utilize to report possible harassment. When a company receives a complaint of possible harassment, it has a duty to investigate that complaint and take prompt, effective remedial action, if necessary. The worst response to a complaint of possible harassment is to ignore it or simply dismiss it as “just locker room talk.”

Workplace harassment may take many forms. It may be, but is not limited to, words, signs, offensive jokes, cartoons, slurs, pictures, posters, email jokes or statements, pranks, intimidation, physical assaults, physical contact or violence. Harassment refers to any action or conduct that creates an intimidating, offensive, or hostile environment or that interferes with work performance. Conversations that include vulgar descriptions of sexual organs could be considered harassment, if they are severe (extremely offensive) or pervasive. The repetition of those types of comments in the workplace means that they are more likely to rise to the level of harassment because they are pervasive. If these comments are made by members of management, the consequences to the company can be even more severe.

Practice Tip: A company should train its managers and supervisors–at least annually–on how to recognize, avoid, and address possible sexual harassment in the workplace. The best way for a company to avoid costly sexual harassment litigation (or minimize its liability should litigation be filed) is maintain a strong culture that harassment in the workplace will not be tolerated.

Kathleen Jennings, Principal is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and also provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2016 Wimberly Lawson

Dirty Deeds Done Dirt Cheap—Another Example of a Bad Harassment Investigation

By Kathleen Jennings (kjj@wimlaw.com)

A recent case out of the Second Circuit Court of Appeals demonstrates the importance of following up on all evidence produced by parties and witnesses in an investigation into a sexual harassment complaint. In Vasquez v. Empress Ambulance Service, Inc., Docket No. 15-3239-cv, August 29, 2016), Ms. Vasquez complained to her employer that a co-worker had subjected her to unwanted sexual overtures, including a texted picture of his erect penis. The employer commenced an immediate investigation. In anticipation of the complaint against him, the accused co-worker manipulated text messages, took screen shots, and printed them out. The final product purported to show that Ms. Vasquez’s consent to and solicitation of a sexual relationship. In reliance on those documents, Vasquez’s employer immediately fired her on the ground that she had engaged in sexual harassment. The employer refused to allow Ms. Vasquez to look at the documents produced by the accused and also refused to accept evidence in the form of text messages from Ms. Vasquez. Ms. Vasquez subsequently filed an action against her employer alleging that she was terminated in retaliation for complaining about sexual harassment.

The Second Circuit Court of Appeals held that the employer could be held liable for terminating Ms. Vasquez in reliance on the false information that it deemed retaliatory under the “cat’s paw” liability theory. The Court explained that the “cat’s paw” metaphor now “refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.” The Second Circuit extended the “cat’s paw” liability to manipulative retaliatory actions by non-supervisors when the employer is negligent in allowing the non-supervisory employee’s false allegations, and the retaliatory intent behind them, to achieve their desired end.

The Court found that Vasquez’s employer was negligent in crediting the accused’s accusations to the exclusion of all other evidence, and specifically declining to examine contrary evidence tendered by Vasquez.

Practice Pointer: In conducting an investigation into any complaint of harassment, it is important that the employer gather and examine all evidence from both the complainant and the accused and interview all witnesses identified by them. While documentary evidence can be very persuasive, it can also be falsified, so it is also important to make an effort to check the facts and authenticity of any documents. For example, in the Vasquez case, the Court noted in its final footnote that the employer should have questioned the text messages submitted by the accused because the exchange indicated that the accused’s texting partner was asleep at a time when Vasquez was actually on shift working for the employer. A quick check of Vasquez’s time records would have revealed the inconsistency. And it might have saved this employer a lot of time and money.

Kathleen Jennings, Principal is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She can be contacted at kjj@wimlaw.com.

©2016 Wimberly Lawson

 

The EEOC Wants to Overhaul Harassment Prevention Efforts

By Kathleen Jennings (kjj@wimlaw.com)

This week, two Commissioners of the U.S. Equal Employment Opportunity Commission (EEOC), Co-Chairs of a Select Task Force on the Study of Harassment in the Workplace, issued a detailed report on workplace harassment prevention efforts. This report was developed after 14 months of study of workplace harassment with the Select Task Force. Convened in 2015, the Select Task Force was comprised of 16 members from around the country, including representatives of academia from various social science disciplines, legal practitioners on both the plaintiff and defense side, employers and employee advocacy groups, and organized labor.

The report includes detailed recommendations for harassment prevention, including a chart of risk factors that may permit harassment to occur; effective policies and procedures to reduce and eliminate harassment; recommendations for future research and funding; and targeted outreach. In addition, it offers a toolkit of compliance assistance measures for employers and other stakeholders.

The report’s key findings are as follows:

  • Workplace Harassment Remains a Persistent Problem. Almost fully one third of the approximately 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment. This includes, among other things, charges of unlawful harassment on the basis of sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion. While there is robust data and academic literature on sex-based harassment, there is very limited data regarding harassment on other protected bases. More research is needed.
  • Workplace Harassment Too Often Goes Unreported. Common workplace-based responses by those who experience sex-based harassment are to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior. The least common response to harassment is to take some formal action – either to report the harassment internally or file a formal legal complaint. Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct. Employees who experience harassment fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.
  • There Is a Compelling Business Case for Stopping and Preventing Harassment. When employers consider the costs of workplace harassment, they often focus on legal costs, and with good reason. Last year, EEOC alone recovered $164.5 million for workers alleging harassment – and these direct costs are just the tip of the iceberg. Workplace harassment first and foremost comes at a steep cost to those who suffer it, as they experience mental, physical, and economic harm. Beyond that, workplace harassment affects all workers, and its true cost includes decreased productivity, increased turnover, and reputational harm. All of this is a drag on performance – and the bottom-line.
  • It Starts at the Top – Leadership and Accountability Are Critical. Workplace culture has the greatest impact on allowing harassment to flourish, or conversely, in preventing harassment. The importance of leadership cannot be overstated – effective harassment prevention efforts, and workplace culture in which harassment is not tolerated, must start with and involve the highest level of management of the company. But a commitment (even from the top) to a diverse, inclusive, and respectful workplace is not enough. Rather, at all levels, across all positions, an organization must have systems in place that hold employees accountable for this expectation. Accountability systems must ensure that those who engage in harassment are held responsible in a meaningful, appropriate, and proportional manner, and that those whose job it is to prevent or respond to harassment should be rewarded for doing that job well (or penalized for failing to do so). Finally, leadership means ensuring that anti-harassment efforts are given the necessary time and resources to be effective.
  • Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
  • New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.
  • It’s On Us. Harassment in the workplace will not stop on its own – it’s on all of us to be part of the fight to stop workplace harassment. We cannot be complacent bystanders and expect our workplace cultures to change themselves. For this reason, we suggest exploring the launch of an It’s on Us campaign for the workplace. Originally developed to reduce sexual violence in educational settings, the It’s on Us campaign is premised on the idea that students, faculty, and campus staff should be empowered to be part of the solution to sexual assault, and should be provided the tools and resources to prevent sexual assault as engaged bystanders. Launching a similar It’s on Us campaign in workplaces across the nation – large and small, urban and rural – is an audacious goal. But doing so could transform the problem of workplace harassment from being about targets, harassers, and legal compliance, into one in which co-workers, supervisors, clients, and customers all have roles to play in stopping such harassment.

The findings regarding the effectiveness of harassment training are controversial and, in the opinion of this legal professional who has conducted harassment prevention training, not entirely accurate. It has been my experience that most employers recognize the economic and other costs of workplace harassment and conduct training to educate the workforce in a genuine effort to prevent harassment, and not just to avoid legal liability. Furthermore, while the goal of training employees in “bystander intervention” is laudable, this appears to be an academically based idea that may not translate well to the workplace setting where most employees are reluctant to “rat out” their fellow employees.

Kathleen Jennings is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She can be contacted at kjj@wimlaw.com.

©2016 Wimberly Lawson

TOP TEN MOST COMMON MISTAKES BY EMPLOYERS IN SEXUAL HARASSMENT MATTERS


By Kathleen J. Jennings (kjj@wimlaw.com)

Here are the top ten mistakes made by employers in sexual harassment matters, in my opinion:

1.    NOT HAVING A WELL-PUBLICIZED WRITTEN HARASSMENT POLICY AND COMPLAINT PROCEDURE.

2.    NOT TAKING SEXUAL HARASSMENT COMPLAINTS SERIOUSLY.

3.    NOT GETTING A CLEAR UNDERSTANDING, PERHAPS IN WRITING, OF THE SPECIFICS OF THE COMPLAINT AND THE COMPLAINANT’S DESIRED REMEDY.

4.    NOT CONDUCTING A PROMPT INTERVIEW WITH THE ACCUSED, SPECIFICALLY WARNING THE ACCUSED AGAINST RETALIATION TOWARD THE ACCUSER.

5.    NOT ADEQUATELY DETERMINING THE INDEPENDENT WITNESSES OR INDEPENDENT EVIDENCE AND REVIEWING SAME.

6.    NOT REACHING A PROMPT CREDIBILITY DETERMINATION AS TO WHAT HAPPENED, BASED UPON THE PREPONDERANCE OF THE EVIDENCE AND REVIEWING SAME.

7.    NOT TAKING PROMPT AND EFFECTIVE REMEDIAL ACTION DESIGNED TO END THE HARASSMENT, INCLUDING REASONABLE DISCIPLINE SHOULD ANY HARASSMENT BE DETERMINED TO HAVE OCCURRED, AND DOCUMENTING SAME IN THE APPROPRIATE INVESTIGATORY AND PERSONNEL FILES.

8.    NOT INFORMING THE ACCUSED AND THE ACCUSER OF THE RESULTS OF THE HARASSMENT INVESTIGATION. MANY WELL-PREPARED COMPANIES DO THIS NOTIFICATION IN WRITING.

9.    NOT FOLLOWING UP PERIODICALLY WITH THE COMPLAINANT TO ENSURE THAT THERE ARE NO ADDITIONAL PROBLEMS.

10.    NOT TRAINING SUPERVISORS ON THE EMPLOYER’S SEXUAL HARASSMENT POLICIES AND PROCEDURES, AND DOCUMENTING SUCH TRAINING.

Remember, employment litigation is an expensive and time-consuming proposition. A company’s investment of time and money on prevention of harassment in the workplace and the proper investigation of each and every harassment complaint will be well worth the time and money saved in the long term.


Kathleen Jennings is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She can be contacted at kjj@wimlaw.com.

©2016 Wimberly Lawson