What Can Employers Learn From the Harvey Weinstein Scandal? Tips from an Employment Lawyer on Preven
As Harvey Weinstein’s decades of sexual harassment in the work place dominates the headlines on the heels of other scandals involving Bill O’Reilly, Bill Cosby, President Trump, Billy Bush, and former President Bill Clinton, it is time to explore ways that we all can take tangible action to help make sexual harassment and violence extinct, whether it is through awareness, outreach, personal restraint/responsibility, and/or formal training. While claims against powerful individuals continue to surface in the media and on social media, and companies adjust their response polices, one thing is clear: sexual claims are very real, very expensive, and very destructive.
In fact, one in three women have experienced sexual harassment in the work place, and employers have doled out over $40.7 million in settlements (not including cases that went to trial) were reported by the Equal Employment Opportunity Commission (EEOC) in 2016. In addition, California Government Code Section 12940(k) requires that all employers “take all reasonable steps necessary to prevent discrimination and harassment from occurring.”
How Pervasive is Sexual Harassment?
In 2016, 12,860 sexual harassment charges were filed with the EEOC, and of the 23,510 total cases that were filed with the California Department of Fair Employment and Housing (DFEH) in 2016, 17% were harassment or gender-based. However, many more instances go unreported.
On October 15, 2017, actress Alyssa Milano crated an Internet campaign suggesting that women post “me too” in their Facebook feeds to indicate that they have also been victims of sexual harassment and/or assault. “If all the women who have been sexually harassed or assaulted wrote ‘Me too’ as a status, we might give people a sense of the magnitude of the problem,” she wrote. Since then, millions of women have simply responded with “me too” in their Facebook feeds, or detailed more than one occasion in which thy have been harassed or assaulted. Within twenty-four hours, more than six million Facebook users were talking about “me too,” and the #metoo hashtag was trending on Twitter.
The outcome of this campaign is staggering and may be a wake-up call for some. However, sexual harassment is not new, not limited to women, and not necessarily based on desire.
I. What is Sexual Harassment?
Sexual harassment is any unwelcome sexual advance, either verbal or physical, that takes place in the workplace. It is illegal under both Federal and California law, and can result in personal liability for the offender, and corporate liability for the employer.
A. Under Federal Law:
Title XII of the Civil Rights Act of 1964 forbids sexual harassment, and is enforced by the Equal Employment Opportunity Commission (EEOC). The EEOC defines sexual harassment as:
Unwelcome sexual advances;
Requests for sexual favors; and
Other verbal or physical conduct of a sexual nature.
These advances, requests, and types of conduct constitute sexual harassment when they:
Affect an individual’s employment;
Interfere with an individual’s performance; and
Create an intimidating, hostile, or offensive workplace.
B. Under California Law:
The California Fair Employment and Housing Act (FEHA) also forbids sexual harassment. Under the more expansive California law, sexual harassment is:
Verbal harassment: epithets, derogatory comments, slurs, etc.;
Physical harassment: assault, blocking movements, or physical interference with normal work or movement;
Visual harassment: offensive posters, cartoons, or drawings; and
Sexual favors: work-related benefits exchanged for unwanted sexual advances.
A “reasonable person” with the same characteristics as the subject of the harassment is the standard used for determining whether a workplace is hostile. That is, from the perspective of the victim, was the offensive behavior sufficiently severe or pervasive enough to call it “sexual harassment” in the eyes of the law?
II. What Does Sexual Harassment Look Like in the Workplace?
Case Study #1: California law
A 2014 claim in California against the popular P.F. Chang’s China Bistro chain cost the company $1 million in response to two employees’ claims that they were repeatedly sexually harassed and were subjected to a hostile work environment. According to the arbitrator’s written order, both women said they were subjected to offensive comments and conduct from the male kitchen staff at the restaurants, including jokes about sex, remarks about female workers’ bodies, and kissing and whistling noises aimed at female employees as they walked by. In addition, one of the women said she saw a group of male kitchen employees watching a pornographic video on a smartphone, and she frequently heard the cooks singing sexually explicit songs in the rear of one of the restaurants.
In 2016, at least four more women filed claims against the company with similar facts, saying they were sexually harassed at restaurants in Anaheim, Chino Hills, Beverly Hills, and Riverside. They claimed that Human Resources did nothing, their hours were cut, and they were transferred to stores three hours away, indicating retaliation for complaints.
When incidents occur independently across a companies’ locations, it may indicate that procedures are not being followed, incidents are not being investigated, and discipline is not being enforced.
Case Study #2: Federal Law
In another case based on federal law, a female manager and another female bank teller at a Wells Fargo Bank, N.A. branch in Reno, Nevada, regularly subjected four women to graphic sexual comments, gestures and images. The harassment included inappropriate touching, gestures, images, and a suggestion that the bank tellers wear sexually provocative clothing to attract customers and to advance in the workplace. One employee quit rather than face ongoing harassment.
A sexual harassment lawsuit was filed by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of the women against the bank, and Wells Fargo paid $290,000 to four female bank tellers. A disciplinary notice was placed in the personnel record of the former branch manager concerning his failure to address the harassment. The EEOC determined that this behavior should have been “nipped in the bud” immediately, and that managers must immediately investigate and rectify the situation.
III. How Does Sexual Harassment Affect the Victim?
Sexual harassment is offensive, frightening, insulting, and humiliating. Effects of sexual harassment can include:
Anger, fear, irritability;
Shame, guilt, humiliation;
Depression, anxiety, shock;
Post-traumatic stress disorder (PTSD);
Loss of motivation and self-esteem; and
Feelings of betrayal, violation, and powerlessness.
Victims may choose not to report incidents of sexual harassment because they may fear:
Loss of job opportunities;
Rejection by co-workers;
Being labeled a “troublemaker”;
Not being considered a “team player”;
Being accused of not having a sense of humor;
The “rumor mill”;
Not being believed; and/or
IV. How Does Sexual Harassment Affect Employers?
Employers who don’t take action to prevent and stop harassment in the workplace can be financially liable.
Employees who have been found to be engaged in sexual harassment may be personally financially liable.
Any employee (at any level) who sexually harasses a co-worker can be individually sued.
It is unlikely that employers of employees who engage in sexual harassment will defend those employees, or pay any damages on their behalf.
Because sexual harassment incidents cause social, economic, and psychological damage to victims, and cost employers significantly in terms of time, money, and lost productivity, it is important to prevent these incidents or mitigate them as soon as they occur.
V. What Can an Employer Do to Reduce Risk of Sexual Harassment Claims?
There are numerous things that an employer can do to satisfy the requirement that it take reasonable steps to prevent harassment in the work place.
Distribute DFEH Pamphlet
First, every employer must provide each of their employees with the DFEH pamphlet 185 “Sexual Harassment is Forbidden by Law,” available for free download in English and Spanish. A good time to distribute this pamphlet is at the same time as sexual harassment training is conducted, or Employee Handbooks are distributed.
Create an Anti-Harassment Policy and Employee Handbook Policy Regarding Harassment
Employee Handbooks outline not only a company’s rules and regulations, include but state and federal Leave Laws. Employee Handbooks should address internal complaint procedures and be updated annually. In addition, a harassment, discrimination, and retaliation prevention (“Anti-Harassment”) policy is required by 2 CCR § 11023 (b).
Best practices include drafting a stand-alone Anti-Harassment policy for employees to sign at the time of sexual harassment training or Employee Handbook distribution.
Post DFEH Poster
All California employers are required to display the “California Law Prohibits Workplace Discrimination and Harassment” poster, available for download on the DFEH website.
Sexual Harassment Training
Fourth, California companies with 50 or more employees are required by law (AB 1825) to provide two hours of sexual harassment prevention training to all supervisors within six months of hire or promotion, and every two years thereafter. However, as a best practice, it is recommend that all employees receive sexual harassment training as a way to minimize potential incidents among employees of all ranks, regardless of the size of the company.
Effective January 1, 2015, amendment AB 2053 requires all California employers subject to the mandatory training requirement under AB 1825 to include a component on preventing “abusive conduct.”
Training can be completed via in-person, classroom-style training by a “qualified trainer;” E-learning; webinar; or other type of interactive training. “Qualified trainers” can be attorneys, professors or instructors, HR professionals, or harassment prevention consultants.
Develop a Policy for Bringing and Reviewing Complaints
Fifth, the employer should develop a clear complaint procedure for victims of sexual harassment that includes immediate review and response by management. Clarify in writing to whom the employee can bring a complaint (i.e. to their direct supervisor, any company supervisor, office manager, Human Resources Director, and CEO, etc).
Seek Professional Counsel From a Licensed Attorney
Finally, the best defense is a well-planned offense. Engage with competent, local attorney in your jurisdiction who can draft or review your harassment policies, assist with investigations, provide a liability analysis in the event an incident takes place, and defend your company in case of a lawsuit. When in doubt, immediately speak with your counsel about your policies or any situations that develop.
If your company is served with a complaint, contact an attorney immediately, as there are short deadlines to answer a complaint–often thirty days or less.
The Grady Firm, P.C. attorneys specialize in helping businesses grow and succeed through employment, business, and immigration law advising for clients. The Grady Firm attorneys provide the following employment law services:
On-site, classroom-style Sexual Harassment training for employees and supervisors;
Draft and review Employee Handbooks, arbitration agreements, and Anti-Harassment policies;
Conduct employee personnel file audits;
Create accounts and assist with E-Verify monitoring;
Assist with the employee on-boarding, discipline, and termination process;
Advise as to medical leave policies and implementation; and
Defend employer when they are sued by current or former employees.
To learn more about ensuring your business is compliant with state and local laws, schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (949) 798-6298; or fill out a