In October 2017, more than 60 women in the film industry alleged that they were sexually harassed or assaulted by Harvey Weinstein dating back to three decades prior.
According to reports, Weinstein would invite young actresses or models into his office or hotel room on the pretext of discussing their careers, but the meetings would then turn to sexual harassment or assault. How could something like this happen repeatedly over decades? It was reported that these meetings were enabled by employees and agents who set up the meeting and by the suppression of complaints with payments and threats.
There is a teachable moment here for employers of all sizes: To prevent and remedy harassment, harassment policies must actually encourage the prompt reporting of harassment. No matter how seemingly innocuous the complaint, where any employee is silenced or disregarded, management conveys an attitude of dismissal toward complaints, which has the ripple effect of discouraging sincere reports. This creates an atmosphere where employees are either afraid to report or feel reporting will have no effect. In that type of scenario, management has no hope of discovering and correcting unlawful harassment.
Last Thursday, October 19, 2017, the Equal Employment Opportunity Commission released guidance aimed at employees titled “What to Do if You Believe You Have Been Harassed At Work”.
To its credit, the EEOC does encourage some personal responsibility in suggesting that the employees should tell the person harassing them to stop, with the caveat of “if you feel comfortable doing so”. However, particularly in situations where there is an imbalance of power, such as with Weinstein, employees should not be relied upon to address harassment themselves.
In its guidance, the EEOC next encourages employees to check to see if their employer has an anti-harassment policy. If there is a policy, the EEOC suggests that employees follow the steps.
Importantly, the EEOC states that the employer’s policy “should give you various options for reporting the harassment, including the option of filing a complaint.” This advice is consistent with case law from the United States Supreme Court, which provides that the development and implementation of a clear policy will serve as an affirmative defense to claims of unlawful harassment. As the EEOC points out, this policy should give options for the reporting of harassment to prevent the chilling effect that may happen when an employee is given no other option but to report to the alleged “perpetrator” or to someone the employee does not feel comfortable reporting to.
In the event that the employer does not have a policy, the EEOC suggests that the employee talk with a supervisor. While it is certainly positive to see the EEOC encouraging personal responsibility, it is crucial for employers to know that there is no case law that provides a defense to employers where employees do not talk to a supervisor, in the absence of a policy. Without a written policy that is known to employees, employers may be liable for harassment, notwithstanding the employee’s decision not to speak with a supervisor.
Also, as was the case with Weinstein, supervisors may try to push the allegations away, most often in an effort to avoid disruption to the organization, which will inevitably backfire when the organization is faced with the time and expense of defending a lawsuit that could have been avoided by addressing the complaints early on.
Here are a few “take aways” for employers:
- You, as the employer, are best advised to have a clear policy against harassment with harassment reporting procedures that include options for reporting harassment, including the option of filing a complaint.
- Even if you have a policy with reporting procedures, it is crucial that the policy be routinely reviewed to make sure that it is actually effective in encouraging timely reporting. It is a good idea to ask your employees directly if there are any changes that could be made to the policy to make the reporting procedures more effective in encouraging reporting.
- Conduct annual trainings where employees are reminded of the appropriate reporting procedures and that the organization encourages reporting.
- Take all complaints seriously. Where complaints are addressed with sincerity, employees will be more comfortable reporting so that management may resolve claims of harassment within the organization.
- Train supervisors to tell HR or Upper Management if they see harassment or receive a report of harassment.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
