Tuesday, November 20, 2018

Christmas Party Sexual Harassment Prevention


It’s time to prepare for your office’s holiday party in the era of sexual harassment. Your company, like mine, probably has a holiday party scheduled. The company party will have alcohol and co-workers, which should terrify employers in the era of #MeToo. Beyond #MeToo, this is also the era of sexual harassment trainings, where every employee in NYS is being educated about their rights when faced with improper conduct. Simply, employees are being told that they have a right to sue the company.

Under this landscape, HR needs to thread-the-needle between keeping the party positive so that it achieves its intended purpose of boosting employee morale, while also setting ground rules that will insulate the company from a sex discrimination lawsuit. To accomplish these competing objectives, HR should email the team a reminder about the awesome events planned, while also including the following five reminders about the party:

  1. The Standard: Remind employees that the sexual harassment standard is subjective and it’s about whether conduct is unwelcomed, not whether the target of the conduct acquiesced to the conduct. Furthermore, employees need to be reminded of the breadth of what can constitute harassment. Beyond the traditional understanding of unwelcomed touching, even “harmless” small talk can be actionable if it’s sexist, sexual, homophobic, gender-stereotypical, and the like.
  2. Policy Effectiveness: Employees need to know that regardless of the location where the party is held and irrespective if the party occurs after working hours, the Company’s sexual harassment and anti-discrimination policies remain in full force and effect. Incident to the policy being in effect, employees should receive a copy of the policy and be reminded of the adverse work consequences that can result if an employee is a perpetrator of harassment.
  3. See Something / Say Something: Most importantly, employees should be empowered to be the solution to eliminate sexual harassment. This can be accomplished by reminding employees of the simple rule of if you see something, say something, which when implemented can effectively stop unwelcomed conduct before it crosses the line and becomes harassment.
  4. Providing the Complaint Form: While avoiding harassment is the first goal, providing victims with resources must be a close number two. To accomplish this, HR should provide all employees with a copy of the complaint form and remind employees of the procedure undertaken when a complaint is received. By providing an avenue for employees to be heard and harassment to be addressed, employers can often avoid a lawsuit and at the least, have a good defense if the employee nonetheless sues.
  5. False Complaints: While the act of setting forth the potential remedial measures faced by a harasser is a great dissuader of improper conduct, improper complaints should also be addressed by HR. However, HR must address false complaints with precision because everyone must be empowered to make legitimate complaints and not feel that they will be retaliated against. Remember, retaliation, which would reasonably discourage a worker from making or supporting a sexual harassment claim, is disallowed conduct. As such, HR should remind the team that an improper complaint is not one where harassment has not occurred, but, instead, where the complaint was made as a sword against a co-worker as opposed to a shield to protect against harassment. That being said, false complaints are a real thing and they must be avoided in order to root out harassment and make everyone safe at the workplace. As such, HR should suggest that employees avoid one-on-ones if they are afraid of improper complaints. By having a co-worker around, the employee will have a witness to corroborate their version of what transpired. Also, HR should remind everyone that a false complaint can result in criminal harassment charges under the Penal Law and/or a civil defamation lawsuit between co-employees. So, complaints are only to be made if they are brought in good faith.



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