Who Needs Halloween to be Frightened?: Politics and Sexual Harassment

I come to you this beautiful October day with three scary topics you should likely avoid at any dinner party.  However, as an employment lawyer and breast cancer survivor, I’m going to tackle all of them:  Politics, sexual harassment and cancer.  I’ll start with the last topic first.  October is breast cancer awareness month.  As a survivor of stage 1 breast cancer, I’m living proof that early detection saves lives.  So if you or your loved one has been putting off a mammogram or checking something that seems worrisome, STOP!  Make an appointment today.  It matters – a lot.

Now, on to the other two…This election is testing many of the fundamental ideas we all believe in as Americans:  democracy, patriotism, equal rights and freedom of speech.  Keeping our opinions to ourselves this election season has become increasingly difficult.  Without offering my own opinion on the candidates, one thing is very clear:  sexual harassment is front and center in this election in a way it has not been since the early 1990s.  And history shows us that when sexual harassment is at the forefront of political discussion, all employers had best take note.  The EEOC reported that charges filed alleging sexual harassment increased by over 60% the year following the Clarence Thomas confirmation hearings.  While I would argue, based on my own experience, that companies are now in a much better position to address sexual harassment concerns and claims than they were ten or twenty years ago, based on the current conversations being had on any cable news show, the chances of a claim are still quite high.

With all of the discussion of sexual harassment in the news, employees are thinking about it more and are more likely to make both legitimate and unfounded claims.  So what can you do as an employer?  Now is a great time to make sure that your policy is up to date and offers two ways for employees to report sexual harassment.  If you haven’t reminded your employees of your policy against harassment, now is a great time to do so.  The current discussions all over the news are a convenient way to remind employees that your workplace does not tolerate harassment.  You should also consider training for your supervisors and employees so that they understand your expectations and your responsibilities as an employer.  If you perform such training, make sure that you document the training, including the date and topic and have attendees sign in.

I find that employers are often confused about their responsibilities related to sexual harassment.  If you discover that harassment has occurred in your workplace, your responsibility is to take reasonable efforts to make the harassment stop.  Depending on the degree of harassment, this can include written warnings, additional trainings or more drastic measures, such as termination of employment.  Regardless of the action taken, you should always remind supervisors that retaliation against those employees involved in the investigation is prohibited.  You should also check back with the complainant several times over the next 12 to 24 months to confirm that the harassment has indeed stopped.  Employers should also be aware that employees not only can bring claims of harassment under Title VII, but they also can bring claims of negligent hiring or retention if an employer is aware that an employee has a history of sexually harassing employees and hires the employee anyway or allows the employee to remain employed and the harassment continues.

Finally, talking politics at the office may not be advisable as a general rule anyway.  However, this year, talking politics without somehow talking about sexual harassment or gender issues is almost impossible.  As a result, employers should remind supervisors to be mindful when discussing politics with subordinates.  In this incredibly contentious election season, endorsement of a candidate could be taken by employees, even out of context, as endorsement of harassing behaviors or discriminatory ideals.

This election season has given me all of the scary I can handle this fall.  Let’s skip Halloween and get November here ASAP!

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