Are your company’s practices perpetuating sexual harassment?

By Stacey Mark
November 28, 2017

Scandals involving sexual harassment are nothing new.  The televised testimony of Anita Hill at the 1991 senate confirmation hearings on the appointment of Clarence Thomas to the U.S. Supreme Court increased public awareness of the issue when Ms.Hill testified to persistent and graphic instances of sexual harassment she endured while working for Mr.Thomas at the EEOC.  Her account was largely dismissed and Justice Thomas’ appointment to the Supreme Court was affirmed by the senate. 

Today, we hear almost daily news reports about sexual harassment as bad or worse than what Ms. Hill testified to almost 17 years ago.  One has to wonder, how there could be so little progress on the sexual harassment front? 

Historically, sexual harassment and sexual assault have been used as a tactic to keep women in their place.  Indeed, it has long been recognized that sexual harassment is more often about power than ignorance or lust.  It is precisely for this reason that sexual harassment remains rampant, despite laws and processes designed to protect employees from it.

To rid the workplace of sexual harassment, companies need to take a hard look at what they might be doing to perpetuate it.  Here are just a few practices that are contributing to the problem:

  • Maintaining policies that direct or require victims of harassment to tell the offending employee to stop. Some employers believe that most sexual harassers don’t realize their conduct is offensive and will stop if the victim speaks up.  This belief is misguided and sends the wrong message.  A victim of sexual harassment has sustained a real injury.  Forcing the victim to confront the perpetrator subjects the victim to further injury and discourages the victim from reporting in the first place.
  • Providing a vehicle for reporting sexual harassment, but without making a report mandatory for victims and bystanders. One of the many (not so) recent revelations about sexual harassment is how much of it goes unreported by victims as well as bystanders.  There are many reasons that people don’t report, including a genuine and often justifiable fear of being blamed, shamed, or retaliated against.  Bystanders may also experience a lack of emotional response or empathy with the victim, a concern about being the only one who makes an issue of it, or a feeling that nothing will be done about it.  Employers need to create a culture in which the entire workforce understands that by remaining silent, they are complicit.  One way to eliminate some concerns that inhibit reporting is to provide a hotline for confidential, anonymous reporting through an outside portal, such as ethicspoint.
  • Failing to promptly address sexual harassment every time it occurs. Another reason employees don’t report harassment is that they believe the information will fall on deaf ears.  Employers need to act promptly to remedy sexual harassment every time it occurs.  Failing to act or selective enforcement (e.g., excluding top executives, best performers, family members) significantly undermines any efforts to curb sexual harassment.
  • Entering contracts that fail to include sexual harassment as a “cause” for termination or forfeiture of termination benefits. It is not unusual for executive and professional employment contracts to permit termination only for “cause” and to provide substantial severance benefits in the event employment is terminated for any other reason.  Many such contracts don’t include sexual harassment in the definition of “cause,” which emboldens sexual harassers by immunizing them from the consequences of their behavior.
  • Failing to take any action in response to an unsubstantiated complaint.  When there are no witnesses to sexual harassment, employers unable to verify the complaint may choose to do nothing.  However, the inability to corroborate the event does not mean it didn’t happen or that the employer should not take any action to protect the alleged victim. 
  • Altering the job of the victim. Employers may respond to a complaint by reassigning the victim to another position, shift, location, or supervisor.  However, even if well-intentioned, imposing such changes on the victim may be perceived as retaliatory, especially if the perpetrator’s terms of employment remain unchanged. 
  • Failing to maintain records of complaints and unsubstantiated reports and purging disciplinary actions from personnel files. Whether or not a complaint of sexual harassment is substantiated, employers must maintain a record of all complaints that are received.  Especially when there is turnover in management, the failure to maintain such records may protect sexual harassers from appropriate scrutiny when there is a subsequent complaint.  Having a record of past complaints may reveal a pattern of sexual harassment that previously was not substantiated or warrants more serious discipline.
  • Dispute resolution procedures that allow reinstatement of a sexual harasser. Some employers, particularly in the union context, have been frustrated in their efforts to terminate employees for sexual harassment by arbitrators who ordered reinstatement, finding that the harasser’s behavior was not sufficiently egregious to warrant termination, the employer was inconsistent in its discipline of employees under similar circumstances, and even sometimes for technical reasons, such as the employer’s failure to act promptly when it learned of the harassment. Arbitrators may believe such decisions are fair from disciplinary perspective, but they are certainly not fair to the victims and do little to promote an environment that is free of sexual harassment.  In the absence of legislation to address this issue, employers and unions need to work together on disciplinary procedures that protect the victims and promote the employer's policy objectives.

Most companies have anti-harassment policies and complaint procedures.  Clearly, just having a policy and procedure in place is not enough in most cases.  Employers need to recognize that ridding the workplace of sexual harassment requires some serious introspection and a willingness to remedy whatever they may be doing to perpetuate the problem.

Ater Wynne's employment group can review your workplace policies and provide training and other solutions to prevent and address workplace harassment.