Sex in the Workplace
Bob Dunlevey of
Taft, Stettinius & Hollister, LLP
Just when employers thought that issues regarding
sexual harassment were somewhat under control (dare I say “put to bed”),
Hollywood reminded all of us that harassment remains an issue for
employers to continue to address meaningfully. Even more concerning is
that the Hollywood’s accusers are reaching back many years to recall
incidents they believe were harassing. These widely publicized
accusations have caused a heightened awareness by your employees of
their rights and each employer’s responsibilities related to the topic.
With all of this publicity, employers should anticipate facing an
increase in complaints in the near term. So what is an employer to do?
Take the following actions now –
Update, republish and reaffirm your
harassment policy which must include all defined types
of harassment – not just sex.
Ensure you have a viable and
accessible complaint procedure.
Effectively train your supervisors,
managers and employees on what harassment is, how to
avoid it and how to deal with it.
Have an investigation protocol, which
will develop the evidence you need promptly and which
will limit your liability.
Take prompt, appropriate remedial
action as warranted.
If the claims are resolved through a
written settlement agreement, retain employment law
counsel to prepare a comprehensive agreement.
Your harassment policy should define unacceptable
conduct, firmly state the company's position, describe the consequences
of inappropriate actions, suggest informal resolution, require a written
report in the handwriting of the employee immediately upon an incident
being reported, inform of the investigation process but not promise that
the process will take any special approach, promise no retaliation and
caution against false accusations being made by employees. Does your
policy do all of these things?
Training of your staff must include, among other
things, information about employees recognizing that what is generally
acceptable in society in a non-employment setting may not be acceptable
in the workplace. Employees must be taught that some individuals may be
more sensitive than others and that it is a matter of individual
perception. Ensure that your employees fully understand the policy and
know the methods for reporting claims and the need for promptly
reporting such. When training your employees, documentation of the
training is a must.
Remember, harassment is unwelcome conduct that can be
based not only on sex but also on race, religion, national origin, age,
disability and other protected classifications. Harassment becomes
unlawful where the conduct is severe or pervasive and unwelcome.
Offensive conduct may include such things as offensive jokes, slurs,
name calling, physical assault, unwelcome touching, intimidation, the
display of offensive objects or pictures, email communications and other
such things. Harassment can arise not only between employees but also
can be caused by non-employees who deal with your staff. Yes, you must
even take action to prevent harassment of your employees by outsiders
who are working alongside your employees or visiting your facilities and
Be sensitive to the fact that disgruntled employees,
especially ex-employees, often strike back at employers through claims
of harassment. While some employers have attempted to obtain insurance
to cover these types of claims, many have found that coverage is less
than what they expected. Also, the punitive damages which usually
represent the largest component of any jury award generally are not
covered by the insurance policy. These claims can be expensive. So,
spending a few dollars now on prevention is well justified.
As part of your Legal Services Plan,
and at no expense to you, feel free to contact OSBA Board Certified
Labor and Employment Law Specialist Bob Dunlevey at Taft –
or (937) 641-1743 – for a suggested harassment policy, a checklist of
items for training your employees and an investigation protocol. For
more information about Taft/Law,
Bob Dunlevey - General Counsel
Taft, Stettinius & Hollister, LLP
40 North Main Street
Dayton, OH 45423-1029
PH: (937) 641-1743
FX: (937) 228-2816