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In the wake of the #MeToo movement, the United States Equal Employment Opportunity Commission (EEOC) has sent a message to employers that cracking down on workplace sexual harassment continues to be an enforcement priority. Immediately following a meeting last June that reconvened the EEOC’s Select Task Force on the Study of Harassment in the Workplace, the agency announced the filing of seven separate lawsuits against employers throughout the country over allegations of sexual harassment and other forms of misconduct.
The EEOC’s actions demonstrate the need for employers to take proactive measures toward eliminating and preventing sexual harassment within their workforce.
What is Sexual Harassment?
Sexual harassment is broadly defined as
- unwelcome sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature,
- when such conduct explicitly or implicitly affects the terms and conditions of an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating or hostile work environment.
Sexual harassment can take myriad forms, including all of the following: commenting on an individual’s body or sexual attractiveness; requesting sexual favors; transmitting or displaying sexually explicit emails, texts, or images; telling obscene jokes; making offensive gestures; and engaging in unwanted touching.
Sexual harassment is considered a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
Sexual harassment also represents significant economic costs to employers in the form of increased absenteeism, reduced productivity, higher staff turnover, and the financial/reputational damage of high-profile payouts.
A Proactive Approach
The EEOC has made clear that employers are charged with exercising reasonable care to identify and correct sexual harassment in the workplace. To that end, employers should consider these practical steps:
Adopt a Written Anti-Harassment Policy
An employer can help minimize its exposure by adopting and communicating a strong, written anti-harassment policy. The EEOC advises that the policy should, at a minimum, include the following elements:
- A clear statement that harassment is not tolerated
- The definition of sexual harassment
- A clearly described complaint process that provides more than one avenue through which employees can report complaints – an employee’s direct supervisor should not be the only person to whom a complaint may be raised
- Assurance that the employer protects the confidentiality of complaints to the extent possible and does not retaliate against employees who report complaints
- Assurance that the employer will promptly and thoroughly investigate complaints and take immediate corrective and appropriate action when it has determined that harassment has occurred
Employers should include the policy in their employee handbooks and distribute to all employees.
Provide Effective Training
Employers should provide sexual harassment training to all levels of employees. Employers should also consider providing additional and separate training to management.
The EEOC states that anti-harassment training is most effective when it is, among other things:
- Championed by senior management
- Repeated and reinforced regularly
- Provided in a clear, easy to understand style and format
- Provided in all languages commonly used by employees
- Tailored to the specific workplace and workforce
- Conducted by qualified, live, interactive trainers or, if live training is not available, designed to encourage active participation
- Routinely evaluated by participants and revised if necessary
Conduct Appropriate Investigations & Take Effective Remedial Action
When an employee reports a complaint of sexual harassment, employers can help protect themselves by promptly investigating the claim. As soon as an employer learns of a complaint, it should determine whether a fact-finding investigation is necessary and how it will be conducted. To the extent possible, investigations should be kept confidential.
In the event that an employer determines that harassment has occurred, it must undertake immediate and appropriate corrective measures. Corrective measures should be designed to stop the harassment, correct its effects on the complainant, and ensure that the harassment does not recur.
Employers should keep in mind that corrective measures that adversely affect or penalize the complainant could constitute unlawful retaliation.
Consult with Legal Counsel for Additional Information
Employers that would like more information about workplace sexual harassment, including advice on creating and implementing effective anti-harassment policies, may contact the attorneys at Milligan Lawless for assistance.