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By Bob Sanders and Josh Levy
The #MeToo movement continues to gain momentum, empowering many individuals to speak up against workplace harassment. In anticipation of a resulting uptick in sexual harassment and discrimination claims, Congress added $16 million to this year’s EEOC budget.
This is a substantial development. To put this in perspective, this is the first budget increase for the EEOC in eight years and follows years of staffing cuts and hiring freezes.
The #MeToo movement has also caused many employers to question what their obligations are when it comes to preventing and remedying workplace harassment. In Meritor Savings Bank v. Vinson, the United States Supreme Court held that employers have an affirmative duty to eradicate hostile or offensive work environments. This includes focusing on harassment prevention and reporting, thoroughly investigating harassment complaints and applying appropriate remedial actions.
The EEOC expects employers to have a clear, explicit policy against sexual harassment that all employees are trained on regularly. The training should help employees recognize workplace harassment and educate employees on reporting procedures. Above and beyond the training that all employees receive, supervisors and managers should be regularly trained on their responsibilities as managers in preventing and/or responding to workplace harassment.
Employers are also expected to have procedures in place to encourage victims of harassment to come forward. These include stating the employer’s disapproval of all types of harassment, encouraging reporting of any instances of harassment, ensuring confidentiality as much as possible, and providing effective remedies while protecting victims and witnesses against retaliation.
When an employer receives a complaint, each complaint should be taken seriously and investigated by an unbiased individual within your company. That individual should be trained on how to conduct an investigation and should be in a position to make a decision without fear of retaliation. At times, with more serious allegations of harassment, an employer should consider retaining an outside firm to conduct a more specialized investigation. The investigation should be fair to all parties (the accuser and the accused) and should be confidential.
If the investigation concludes that harassment occurred, employers should take appropriate corrective action designed to end the harassment. The corrective action should be determined on a case by case basis taking into account the severity of the harassing conduct. Whatever corrective action you decide on, realize that you are creating company “precedent” and make sure that it will not have the effect of making the complainant feel retaliated against.
Now, more than ever, employers should take time to revisit their harassment policies, procedures, and training.
Bob Sanders and Josh Levy are attorneys for Husch Blackwell, LLP, an ABC member. Sanders can be reached at 414-978-5458 and Levy can be reached at 414-978-5554.