In the Workplace 2019: Rethinking Sexual Harassment Prevention

This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2019. The series was featured in Arkansas Business. 

Over a year ago, the #MeToo movement started a national conversation about workplace conduct, and we’re now seeing hard evidence that harassment claims are on the rise. Preliminary data provided by the Equal Employment Opportunity Commission (EEOC) shows a 12% increase in the number of sexual harassment charges filed, and a 50% increase in the number of harassment lawsuits filed by the agency.

In addition to legal risks, harassment claims are bad for business. The last year brought calls to boycott Uber and Nike over harassment issues, driven largely by social media campaigns. Other companies—such as Wynn Resorts—saw a negative impact on stock prices following public allegations against owners or executives. The reputational damage caused by harassment claims can be long-lasting and costly.

Mindful of these risks, many companies are providing harassment prevention training, but some may want to rethink how they approach such training. Too often the training focuses on legal standards for harassment. That makes sense if you’re teaching a law school class, but it’s not the most effective way to create a workplace where employees feel safe, comfortable and respected.

The legal standard for a hostile work environment claim is actually quite high. That’s the standard an employee or former employee would have to meet to succeed in court. But the goal of harassment training shouldn’t be to teach employees how to draw the line between lawful and unlawful conduct. A better goal is to create a workplace culture that doesn’t foster behaviors that lead to complaints.

To that end, consider a broad approach to harassment training. Avoid legalese and don’t harp on legal definitions of harassment. Instead, teach employees that professionalism and respect are required. Help them understand the types of behavior that can make others uncomfortable, and provide coaching on how employees should respond if they inadvertently offend a coworker. Some training also addresses bystander intervention—that is, steps employees can take if they observe inappropriate conduct directed towards someone else.

Remember that sexual harassment doesn’t always involve unwelcome sexual comments, advances or dating requests. Many harassment complaints are based on allegations that women are treated hostilely or belittled. A recurring theme in this type of complaint is the perception that women are treated with less respect in meetings—for example by being interrupted or having their ideas treated dismissively. Companies can train employees on how to run inclusive meetings and provide tips for avoiding the perception of disparate treatment.

Companies should also train supervisors on their obligation to report potential harassment issues to human resources for investigation. The best practice is to train supervisors to report potential harassment even if they think the behavior isn’t that serious, even if they didn’t receive a formal complaint and even if no one used the word “harassment.” Many supervisors don’t come to the job knowing how to recognize and respond effectively to potential harassment issues, so companies should teach them these skills.

It’s essential for a company to provide training on standards for acceptable behavior, promptly investigate complaints when issues do arise and hold employees accountable when they fail to meet company standards. The corrective action should be proportional to the offense, so holding employees accountable doesn’t always mean someone loses their job.

Many harassment claims filed with the EEOC or in a lawsuit do not meet the legal standard for harassment and can be successfully defended. But the real win is creating a culture of civility and respect that reduces the risk that a complaint is ever made. As an added benefit, having a reputation for a positive workplace culture also makes it easier to recruit and retain talented employees.

Michelle Kaemmerling heads up Wright Lindsey Jennings’ labor and employment team. She is a partner in the Little Rock office whose practice focuses on employment counseling and litigation, including class actions and collective actions, compliance training, wage and hour audits, and employment-related contracts. She can be reached at mkaemmerling@wlj.com.