By BECKY GILLETTE
Hardly a day passes that there are not more headlines detailing allegations of sexual misconduct in the workplace. Many of those involve famous Hollywood stars or producers. It is a lot harder to complain about a producer because doing that in a tight knit community could keep them from getting other jobs with other production companies, said Nick Norris, a labor and employment lawyer with Watson & Norris PLLC, Jackson.
Now with the Harvey Weinstein allegations, people are coming out of the woodwork with new allegations in Hollywood because people feel more comfortable complaining as they have seen studios actually take action, Norris said.
In all types of workplaces, when the conduct involves the owner of a company, people are fearful of complaining. Norris said many times owners get away with sexual harassment more than a lower level supervisor, and then the owners get emboldened and more overt in their harassment.
“Most people don’t file complaints internally against an owner because they know the human resources department can’t reprimand or prevent the owner from retaliating against the employee,” he said.
If you think you are being retaliated against for complaining about sexual harassment, you can file a charge with the Equal Employment Opportunity Commission (EOCC) and eventually a lawsuit for retaliation. Norris said a problem they see a lot of times is employees don’t realize they first need to file an internal complaint.
“Instead of complaining, we see the employee quit,” he said. “Even if you think human resources isn’t going to do anything about it, you still need to give them the opportunity because if you don’t, you can’t go back and sue them because you didn’t give them the opportunity to correct the behavior.”
Steve Cupp, a labor and employment lawyer in Gulfport with Fisher Phillips, LLP, said there is hardly a workplace left today where managers are not at least aware of the complicated and costly problems that can be created by even a single incident of sexual harassment.
“We are fortunate to represent companies that are very aware they need to prevent all forms of harassment and discrimination in the workplace, including sexual harassment,” Cupp said. “With the Weinstein allegations, he was a principal in a company and the information that came out was that he was using his power within the movie industry to coerce sexual favors from those seeking to break into the movie businesses.”
Two most common types of sexual harassment are when a male or female supervisor uses their position of power to ask for sexual favors from a subordinate employee or the supervisor creates a hostile environment with constant verbal harassment, such as a barrage of sexual innuendo.
“A supervisor can create a hostile environment by how they talk to employees and by how they conduct themselves both in and outside the workplace,” he said.
Cupp recommends five things employers can do to help insulate themselves from claims of discrimination and claims of sexual misconduct:
1. Develop and implement a written policy prohibiting workplace discrimination and harassment based on all the categories protected by Title VII of the Civil Rights Act and other federal and state laws, such as race, sex, age and national origin. The policy should define sexual harassment, provide examples of what may constitute sexual harassment, and have clear reporting mechanisms setting forth how employees should report incidents of misconduct.
2. Sit down with all the managers and supervisors and train them on what the policy means, how they should comport themselves with subordinate employees, and how to handle situations if an employee complains to them. They have to understand their obligations. You can’t turn a blind eye. Also, you can’t retaliate against an employee who brings forward a complaint.
3. There should be a robust investigation of any complaint made by an employee including meeting with the employee who has complained and having that employee write a statement of what happened. Follow all leads by talking to other potential witnesses and the alleged offender to get his or her side of the story. Review video, if available. Gather as much information as possible.
4. After the information is gathered, there must be a rational decision made as to how the situation will be handled. Often, this is the stage where outside legal counsel gets involved to provide advice. Sometimes it is difficult to determine what happened if there are no witnesses. If the evidence is overwhelming that an employee or supervisor engaged in misconduct, often the offender is discharged because the misconduct may create so much liability for the company. Suspension without pay may also be appropriate. In all cases where there is misconduct, the employer is obligated to take prompt and effective remedial action to help ensure, to the extent possible, that the offending conduct will not be repeated.
5. Always follow up with the person who made the complaint, regardless of the decision that the employer makes. That is an important step and shows employees that the employer takes the process seriously.
“If you follow those steps, it is going to be very difficult for an employee to sustain a complaint against the company,” Cupp said. “The law recognizes there is no perfect workplace or employer. When an employer implements a policy, promptly addresses any issue that is brought forward, and takes steps to effectively remedy problems, it is difficult for an employee to successfully bring a complaint against the employer.”
Defending against sexual harassment complaints is expensive. In 2016, there were 12,860 sexual harassment EEOC charges filed nationwide resulting in $40.7 million going to victims of sexual harassment. “That doesn’t include attorney fees and all the other costs that go into defending a claim,” Cupp said. “It shows these things can be very expensive, time consuming, and a general headache for the company.”
Jaklyn Wrigley, an attorney with Fisher Phillips LLP in Gulfport, said you would be hard pressed to find a woman who hasn’t experienced sexual harassment in the workplace.
“If you feel that inappropriate conduct is occurring in your workplace–regardless of the nature of that conduct–the best thing you can do is to report it to the appropriate member of the management team,” Wrigley said. “People are not always comfortable discussing it with the person responsible for it or asking them to stop. Women are also often fearful of the repercussions from raising issues like this. But, it is important that those on the receiving end of inappropriate conduct speak up and take the complaint to the management team in the most professional way possible.”
Anecdotally, from experience and conversations with friends, she has seen that younger women seem to be less tolerant of this behavior in the workplace.
“I think the ‘boys will be boys’ mentality that generations ahead of mine sometimes used as justification for inappropriate conduct in the workplace has come to an end,” Wrigley said. “Women are speaking up.”
How is sexual misconduct defined by the EEOC?
Unfortunately, the line between actionable harassment and merely boorish behavior is drawn on a case-by-case basis and often left to a jury. One federal judge likened the difficulty of performing the analysis to “attempting to nail a jellyfish to a wall.” It is clear that the range of actions that could constitute sexual harassment is enormous and leaving such a determination to a jury is risky and expensive.
Some common examples of conduct that might be deemed harassment include:
Physical actions: » giving a neck or shoulder massage; » touching a person’s body, hair, or clothing; » hugging, kissing, or patting another; » standing close to, or brushing up against, a person; » touching or rubbing oneself in a private area or with sexual overtones near another person; » exposing oneself; » touching, leaning over, cornering, or pinching some one; or » snapping a woman’s bra strap.
Verbal actions: » referring to another as a “girl,” “doll,” “babe,” “hunk” or “honey”; » whistling or making cat-calls at another; » making comments about a person’s body, clothes, looks, anatomy, or manner of walking; » turning work discussions into sexual topics; » telling sexual jokes or stories; » discussing one’s love life; » asking about sexual fantasies, preferences, or history; » repeatedly asking a person for a date who clearly is not interested; » making kissing sounds, howling, or smacking lips; or » telling lies or spreading rumors about a person’s sex life.
Non-Verbal actions: » looking a person up and down (elevator eyes); » staring at someone; » blocking a person’s path; » making sexual gestures with one’s tongue or hands or other body movements; » following a person around; » giving unwanted personal gifts; » displaying sexually-suggestive visuals (calendars, pictures, comics, food displays); » making sexual overtures, comments or propositions via electronic media, such as text messages, instant messages, emails, and social media sites; or » making facial expressions such as winking, throwing kisses, licking lips, or requiring an employee to wear provocative clothing
— Courtesy of Fisher Phillips