Opinion: O’Reilly case shows need for employer diligence

Recent headlines about Fox News’ Bill O’Reilly have undoubtedly increased awareness regarding sexual harassment in the workplace. With the heightened interest amongst employees regarding workplace rights, metro Atlanta employers should brace themselves for more sexual harassment-related inquiries.

Companies that don’t take appropriate measures may find themselves in deep trouble. Failure to identify and handle these situations properly can result in monetary judgments, attorney’s fees, reduced employee morale and negative media exposure that is costly to their business.

Yet there are proactive steps that can better protect Atlanta businesses – and hopefully keep them out of the headlines.

First, educate yourself. Title VII of the Civil Rights Act of 1964 prohibits discrimination and harassment in the workplace. The most common harassment claims are “hostile work environment,” generally arising when repeated unwelcome conduct creates a workplace so hostile or offensive that the employee resigns, and “quid pro quo,” generally occurring when a supervisor seeks to exchange sexual favors from a subordinate for favorable treatment.

Next, implement a no-harassment policy and update it regularly. Best practices start with effective up-to-date policies. When was the last time you reviewed your no-harassment policy? Does it include a definition of harassment, examples of harassment, reporting procedures for employees experiencing and witnessing harassment and language that complainants will not be retaliated against? Have you thought about your policy from a practical perspective?

Many policies direct employees to lodge complaints with their supervisor, but the employee’s supervisor is often the person who the employee is complaining about. Before listing a supervisor as the point of contact, have you checked that all of your supervisors have been properly trained (including reporting complaints to Human Resources)? What about lower level supervisors?

Mistakes made by untrained supervisors are often costly to the extent they minimize allegations as mere joking, employee sensitivities, or otherwise condone unlawful behavior. You might instead consider referring employees to a trained Human Resources individual or upper management. However, implementing a no-harassment policy is just the start.

Consider a recent $50,000 settlement in neighboring North Carolina where an employer allegedly failed to promptly stop harassment when an employee complained of inappropriate touching and sexual comments. The employee alleged the harassment was witnessed by management and further alleged that they reported it several times.

You also need to communicate policies by including them in your employee handbook, posting them on your intranet, or regularly disseminating them. It’s best to maintain records of these communications and/or training through a signed acknowledgement form and/or attendance sheet.

Training is your next step. Train your supervisors and managers on how to handle complaints, and be certain to include examples of unacceptable comments and/or behavior. In this day, harassment may take various forms, including forwarding of inappropriate emails and/or sharing of electronic communications and photos (consider recent headlines involving active-duty officers under investigation for sharing nude photos of female troops). Also, recognize that complainants do not always use the words “harassment” or “hostile work environment,” but should be taken seriously regardless.

Next, investigate. When your company becomes aware of an issue, it should swiftly investigate in a thorough and impartial manner, using open-ended questions. When conducting interviews, questions should be asked in a way that is not accusatory, overly familiar, or impartially supportive. Investigations should include review of all pertinent information (including text messages and electronic communications) and should be well-documented.

Then, once your investigation is complete, take corrective action where appropriate. The law does not discriminate in its application and neither should you. Regardless of whether your investigation finds improper conduct by a member of upper level management or the new intern at the front desk, corrective action should be taken up to and including termination. Alternative remedial measures may include transfer, counseling, or re-disseminating company policy.

And last, but not least, call your attorney. They can provide valuable advice throughout this process, review your policies, provide training, strategize investigations, and more. To the extent your company operates in other states, an attorney can advise you on whether state law requires that certain information be included in your no-harassment policy and/or whether training is mandated.

One does not need to go farther than the morning newspaper to see that sexual harassment allegations can arise in any organization, involve actors across various levels, and leave companies with long-term financial and reputational damage. Learning how to handle these situations internally can lessen your company’s risk that these types of allegations spill out into expensive lawsuits and negative media coverage.

Michelli Rivera is an attorney at Atlanta-based labor and employment law firm Fisher Phillips.

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