Sexual Harassment Dos and Don'ts

You’ve likely heard the appalling reports of sexual harassment against the now-disgraced Hollywood mogul, Harvey Weinstein. Sadly, the film industry is not alone; high-profile executives in the news, hospitality, and tech industries have also been faced with similar accounts of workplace harassment.

So, what should you do if an employee complains of sexual harassment?

First, what is sexual harassment? Sexual harassment is unlawful discrimination based on sex. It is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when one of the following is also true:

• Submitting to the conduct is a condition of employment;
• Submitting to or rejecting the conduct influences employment decisions; or
• The conduct creates an intimidating, hostile or offensive work environment.

Sexual harassment can be committed by a person of any gender or sexual orientation.

Three things your company should not do after receiving a sexual harassment complaint:

1. Don’t hide. Hiding will not make it go away, and it normally only makes matters worse. While you can’t predict where the investigation will lead, you need to face it. It’s not just exposure to significant civil liability—think six to nine figure sums—Fox News reportedly faced a criminal investigation over its mishandling of workplace sexual harassment complaints.
2. Don’t wait for a “formal” complaint.
   “The employee didn’t put it in writing”
   ”The employee said she doesn’t want to file a formal complaint”
   ”The employee doesn’t want to get his co-worker in trouble”
   None of these are excuses to ignore inappropriate behavior in the workplace once you’re aware or should be aware of it.
3. Don’t make assumptions.
   “She’s mad because she had a bad performance review”
   ”I’ve known him for years, he would never do that”
   You can’t justify failing to address a complaint of sexual harassment.

Three things a company must do after receiving a complaint of sexual harassment:

1. Respond quickly. A prompt response is essential to demonstrate a company’s commitment to a fair and respectful workplace. It also potentially reduces the risk of litigation and preserves available legal defenses.Tell the employee the company takes his/her complaint very seriously and is committed to providing a work environment free from sexual harassment. Develop a plan to investigate the complaint as quickly as possible and consult with experienced employment counsel. An investigation should include interviews of the complaining employee, witnesses, and the accused. The investigation should be documented and support the findings.
2. Take it seriously. Uber’s Board of Directors hired former Attorney General Eric Holder to investigate sexual harassment claims. Hiring an experienced employment attorney to investigate a sexual harassment claim is not an admission of responsibility or guilt—it can demonstrate the company’s commitment to a fair and thorough process.
   It also means the attorney-client privilege may be applied to the investigation. Whether or not an attorney conducts the investigation, consulting with employment counsel throughout the process can help the company prepare a defense against potential litigation and avoid missteps, such as unlawful retaliation.
3. Be proactive. All employees, especially supervisors, should be trained on how to react and respond to a sexual harassment complaint. A company will be held vicariously liable for the actions and inactions of supervisors. If you can’t remember the last time your company had sexual harassment training, invest in retraining. All Vermont employers are required to have a sexual harassment policy with specific elements—make sure your policy is compliant and has a mechanism for making complaints.

Alexandra Clauss is an attorney and shareholder with Primmer Piper Eggleston & Cramer PC in Burlington, Vermont. Her practice is devoted to providing businesses with practical advice on employment law compliance and human resources issues. Alexa is a frequent speaker on HR topics, and she conducts workplace trainings, internal investigations, and drafts employment documents. She is admitted to practice law in Vermont, New Hampshire, and California.