As the #MeToo Movement against sexual harassment gains steam — toppling politicians and business leaders alike — some lawyers say companies should be proactive and revisit their own organization's policies and procedures before their own scandal erupts.
The federal government also has weighed in on the issue, with a bipartisan group of elected officials having introduced a bill in December aimed at eliminating forced arbitration clauses in employment agreements that may have led employees to keep silent about workplace sexual harassment and gender discrimination. The federal activity follows an earlier move in New Jersey to consider similar legislation.
Guarding against harassment and intimidation can be complicated. One reason is that “with the exception of harassment in a criminal context, there is no bright-line definition of workplace harassment,” which creates ambiguity for both employers and employees, noted Kimberly Anne Capadona, a partner in the Hackensack office of law firm Archer.
“Harassment is not limited to sexual harassment,” she explained. “It is any unwelcomed, unsolicited conduct that occurs because of a trait that is protected under law — such as disability, age, and race, in addition to gender — and which an employee regards as undesirable or offensive.”
But what about gray-area situations, like a supervisor who’s speaking with a subordinate and places his arm (statistically the alleged harasser is more likely to be a male) around a female subordinate’s shoulders. Is the gesture an affectionate one with no connotation of impropriety, or is it a not-so-subtle come-on by a person who has the power to fire you? It depends on the circumstances.
“Something like that could be considered workplace harassment by an employer,” according to Capadona, whose practice focuses on employment law and labor relations. “But in order to determine if such conduct constitutes workplace harassment, there are several questions that must be asked by the employer.
“First, did the employee who was touched by the supervisor find such conduct offensive? If so, did the supervisor only put his arm around the employee because the employee was a woman, or does this supervisor put his arm around men as well? Was this a one-time occurrence? Had the employee told the supervisor in the past that such actions made the employee uncomfortable? Was this supervisor counseled in the past by the employer about touching employees? In a court of law, however, it is highly unlikely that an employer would be found liable under the New Jersey Law Against Discrimination as a result of a one-time occurrence of an arm around the shoulder by a supervisor.”
Generally, it’s safer if employees simply refrain from touching their co-workers, Capadona added.
“Moreover, we advise employees to refrain from saying anything at work that they would not want to hear said to their parent, spouse or child,” she said. “With respect to employers, we suggest zero tolerance anti-harassment and anti-discrimination policies, which are adhered to in all circumstances, as well as sensitivity training for management and staff.”
The human resources department, working with inside or outside legal counsel, is a good starting point, counseled Capadona.
“If the employer has a human resources department, HR should make sure that the anti-harassment and anti-discrimination policies are distributed to all employees. We suggest having each employee sign an acknowledgement that the policy was received and reviewed.”
When a new employee is hired, an HR executive or other appropriate manager should explain key policies, including those related to harassment and discrimination.
“Once a harassment or discrimination complaint is received, the human resources department should immediately advise all necessary parties in upper management that a complaint was received and that an investigation will commence,” Capadona said. “Human resources or other representatives may be responsible for interviewing all necessary parties and making the determination as to whether a violation of the company policy has occurred.”
The stakes are high. If a court determines a company is liable for harassment, monetary damages could be awarded by a jury and could include “back pay, front pay, emotional distress, attorneys’ fees and costs, and punitive damages,” added Capadona.
In 2015, the New Jersey Supreme Court held in Aguas v. State of New Jersey, that an employer who is sued for a hostile work environment or sexual harassment may raise the defense that it “exercised reasonable care to prevent and promptly correct any sexually harassing behavior.”
But any such program “must be more than just a policy in name,” counseled Robyn Aversa, a principal in the Morristown office of the law firm Jackson Lewis PC.
“An employer must demonstrate that actual training took place, and that employees know what kind of behavior is not acceptable, to whom to report if policies are violated, and that appropriate action will be taken to stop such behavior and correct any violations,” she said.
It's also important to document everything.
“In one case, we represented a company in central New Jersey — part of a multistate retail chain — that had been sued by a female employee who complained that a male co-worker had sexually harassed her, and that her health suffered from the stress associated with it,” recalled Aversa. “But it turned out the company had properly investigated her claim — the two employees had been dating and after they broke up he made some rude comments about her — and our client terminated his employment. It also turned out that the connection between her health and the alleged harassment was tenuous, since the woman had pre-existing health conditions. As a result of the company’s effective anti-harassment policy and quick action, the judge dismissed the plaintiff’s case on summary judgement without even going to trial.”
Another case had a different ending.
“We represented another company where a woman alleged a man had coerced her into having sex with him,” Aversa said. “The company investigated and fired the male employee, but when it raised the defense that the harasser had gone through training classes, it was unable to produce any documentary evidence to back up the claim. Because of that, the judge refused to dismiss the case, although the company later reached a settlement with the woman.”
The rise of the #MeToo movement and a spate of high-profile resignations and firings ensures that “more people are now aware of harassment issues,” she added.
“And with New Jersey, other states and the federal government considering legislation to prohibit nondisclosures and arbitration agreements that keep confidential employees allegations, the legal landscape may be changing,” Aversa said. “So it’s more important than ever for companies to make sure that they’ve got policies in place to address this issue.”