Sexual Harassment Guidance is Coming. But Don’t Put Off for Tomorrow What You Can do Today!

The #MeToo movement is changing the face of the employment relationship when it comes to sexual harassment claims. In fact, the U.S. Equal Employment Opportunity Commission’s Chair, Victoria Lipnic, recently announced that changes to the decades-old enforcement guidelines on sexual harassment would be receiving an overhaul. The proposed revisions, according to Lipnic, are currently under review by the White House’s Office of Management and Budget.

Lipnic reported the agency has not yet seen a spike in sexual harassment claims but did say she is interested in seeing what would happen over the next year. With this in mind, there is no better time for employers to take steps to ensure they have a harassment-free workplace. Here are some things employers can start doing immediately.

First, employers should always take allegations of sexual harassment seriously and address them promptly. Employers should quickly investigate such claims by hiring a law firm that will conduct a thorough, unbiased and neutral investigation.

Employers should be wary when hiring their regular law firm to conduct the investigation because doing so may lead to harsh consequences in today’s sexual harassment landscape. For example, in previous years, it was common for a firm to respond to such an allegation by hiring their regular outside counsel to conduct a defense-oriented investigation that, many times, would result in a confidential resolution. Many employers, however, are discovering previous sexual harassment settlements may not be thoroughly protected by confidentiality clauses.

Second, employers should review their workplace policies and harassment reporting procedures. Reviewing and updating these policies will assist with the company in promptly and adequately responding to sexual harassment claims. Strong policies will provide employers a roadmap on how to uniformly deal with issues as they arise. Not to mention, strong anti-harassment policies send a strong message to an employer’s workforce.

Third, employers should conduct sexual harassment and cultural sensitivity training. An educated management and supervisory team is an employer’s best asset! While the best practice is to train employees upon onboarding, employers should ideally train managers and supervisors at least two hours every other year and line employees 30-60 minutes every other year. Employers should work closely with the law firm facilitating the training to address any specific concerns and special needs the employer may have.

Fourth, employers should audit old settlement agreements to determine any potential exposure. As we have learned in the news, these confidentiality clauses may not pass muster. Recall Olympic gold medalist McKayla Maroney testified against USA gymnastics team doctor Larry Nassar’s sentencing hearing despite having signed a nondisclosure agreement with USA Gymnastics years earlier.

It’s no secret we believe the best way for an employer to protect itself is “doing the right thing.” Taking these measures will help ensure the employer has processes in place for when a claim of sexual harassment arises.

Alejandro Pérez is a skilled employment attorney who understands gender dynamics ad LGBT-specific issues. Mr. Pérez regularly consults clients on employment best practices and is experienced in conducting sensitive workplace investigations; delivers training on a myriad of workplace issues, including sexual harassment; and drafts sound employment policies to assist his clients in limiting liability and fostering positive employer-employee relationships.