Avoiding Sexual Harassment Claims in a #MeToo World
By: Ashley B. Harshaw Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sex, race, color, national origin, and religion. Title VII applies to employers with fifteen or more employees, local, state, and federal governments, as well as to employment agencies and labor organizations. Sexual harassment is a form of sex discrimination prohibited by Title VII. An employer is legally responsible for the harassing conduct of a supervisor where a tangible employment action, such as firing or demotion, occurred. Where no tangible employment action is taken, the employer will still be liable unless it proves that: 1) it exercised reasonable care to prevent and promptly correct any harassment; and 2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. As demonstrated by the recent #MeToo movement, sexual harassment in the workplace is a prevalent problem facing workers, especially women, in the United States. The hashtag has been posted millions of times on social media, including by several high-profile celebrities. Yet, as exceedingly widespread as this problem is, the majority of incidents go unreported. An employee may be reluctant to report for a variety of reasons, many of which stem from her employer’s inadequate anti-harassment procedure. For example, the employee may feel that her complaint will be ignored. Worse, she may be concerned she will face reprisal. She may be particularly dissuaded if the individual she is supposed to report to is the very perpetrator of the harassment. Establishing an effective grievance process and a zero tolerance policy for sexual harassment provides the best means of eliminating sexual harassment in the workplace. The policy and procedure should be in writing and distributed to all employees. It should emphasize that harassment, as well as retaliation for filing a complaint or participating in an investigation, will not be tolerated. Employees should additionally receive regular training in sexual harassment, not only to ensure awareness of the employer’s grievance procedure, but also to elucidate behavior that constitutes unlawful harassment. An effective reporting procedure will designate multiple, accessible contacts outside the chain of command to receive complaints. Moreover, the procedure must provide robust protection of a reporting employee’s confidentiality in order to reduce fear of retaliation. The employer should encourage its employees to take advantage of the procedure before the harassment becomes severe or pervasive. Of course, the employer should immediately address complaints filed and begin a thorough and impartial investigation, and ultimately take corrective action. Disciplinary measures should reflect the seriousness of the offense. Taking these steps will help an employer fulfill its responsibility to provide a safe and respectful environment for its employees. This article has been prepared for educational and informational purposes only and does not constitute legal advice. The laws of other states and nations may be entirely different from what is described in this article. Because of these differences, you should not act or rely on any information on this article without seeking the advice of a competent attorney licensed to practice law in your jurisdiction for your particular problem. The author has endeavored to comply with all legal and ethical requirements in writing this article and does not desire to solicit or represent clients based upon their review of any portions of this article which do not comply with the legal or ethical requirements of the jurisdiction in which the client is located. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.