Legal: Workplace Harassment

March 12, 2018 No Comments
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Navigating A Brave New World

by Anne M. Radolinski

toc_columns50pxThe year 2017 brought any number of significant events on both a national and international level that seemed to touch virtually every aspect of business, trade, government, labor, education, and immigration policy, as well as public and private life.

One of the most startling developments in the United States was in the discourse regarding sexual harassment and abuse. The media exposure of shocking allegations regarding the conduct of Hollywood heavyweights started the dramatic turn of events. The revelations continued, extending well beyond Hollywood, to federal, state and local politicians, business leaders, media and sports personalities, and most recently to the board of USA Gymnastics.

Perhaps the two most pressing questions for business leaders are:

  • What is the new environment and what are the expected consequences?
  • What steps can businesses take to meet the challenges?

The Environment and Expected Consequences
The media frenzy may eventually die down but the central issues, which have been so dramatically showcased, may have permanently entered the public psyche. Polling of U.S. citizens has abounded in recent months. The results of a poll by the Washington Post – ABC News issued in January 2018 indicated that 83 percent of the adults who responded thought sexual harassment of women in the workplace was a problem, and 72 percent thought it was a serious problem.

The public and private discourse, and initiatives relating to the topic, are expected to continue for quite some time. Societal norms and expectations are in a state of flux and evolution.   Legislation is emerging. An example is a provision of the recent Tax Cuts and Jobs Act; new Code Section 162(q) prevents the deduction of any settlement, payment, or attorney’s fees related to sexual harassment or sexual abuse if the settlement or payment is subject to a nondisclosure agreement.

Employees are expected to have a heightened awareness and sensitivity to rude, abusive, disruptive, and harassing behavior, particularly on the part of executives, managers, supervisors, and other personnel with power or perceived power over employees, the work environment, and company practices and policies. Shifting attitudes, particularly with respect to workplace issues, have historically resulted in an increased intolerance with perceived inappropriate conduct and the willingness to take action in response.
Employment lawyers who advise businesses, boards, and executives are noticing a decided uptick in internal complaints, human rights agency filings, and threatened litigation involving workplace harassment, bullying, and perceived unfair treatment. They are also noticing an uptick in instances where employees seek legal advice and involve personal lawyers earlier in the process.

Meeting the Challenge
Whatever one’s reaction to, or assessment of, the media coverage of sexual harassment allegations, most agree that previous policies and practices have not been effective enough in preventing workplace harassment; and are not sufficient to manage legal risk for businesses and organizations in the current environment.

Where does one go from here? Set forth below is an outline of a suggested approach to revamping prevention programs.

Replace or augment traditional harassment training
Traditional sexual harassment training is well intentioned but has not been particularly effective in prevention. Many employers provide new employees and/or current employees anti-harassment training by way of electronic programs or videos, or by way of traditional presentations which center on legal definitions and general examples of behavior to be avoided. These traditional methods, particularly at the new hire stage, may be necessary to meet state statutory training requirements, and may, depending on content and quality, be an initial tool, but they have only limited value in prevention.

Factors to Consider
Employers in this new environment are urged to develop programs that are specifically designed to their particular work environments, businesses, customers, and employee populations. A number of the potential factors to consider in such an evaluation are:

  • Determine ways in which to actively involve senior management and human resources professionals, in the preparation, content, and transmission of the message about sexual harassment.
  • Move beyond legal definitions of harassment to a frank and practical discussion of the type of conduct that is expected in the particular work environment.
  • Broaden the message and discussion with executives and managers in particular to expectations regarding corporate culture, adherence to codes of conduct, and what is expected of each of them as executives, management, and supervisors.
  • Management, supervisors, and others in positions of authority should understand that:
    • They are the face of the company, should set the example of behavior, and are responsible for ensuring that employees adhere to standards of professional and respectful conduct.
    • Inappropriate behavior and employee complaints should be promptly reported to designated human resources or other designated personnel.
  • Ensure that the message and discussion with management, supervisors, and others in positions of authority are ongoing, rather than once a year or every several years.
  • Directly cover the difficult and current topics for your workforce; do not brush over difficult discussions with general comments about appropriate behavior. Address, for instance: teasing, bullying, rude and abrasive behavior, content of jokes, cultural and language differences and challenges, and invitations to dating and workplace relationships.
  • Use regular management meetings to underscore the importance of adherence to expectations of the code of conduct and company policies.
  • Consider one-on-one coaching for new executives, management, supervisors, and others moving into positions of authority.

Use performance evaluation meetings with executives, management, supervisors, and others in positions of responsibility and authority as another opportunity for discussion regarding expectations.
A subsequent article will address the evaluation of sexual harassment policies and evaluation of practices related to the investigation and resolution of employee complaints.pm_endmarkred-e1320337243152

ANNE M. RADOLINSKI is an attorney with Fredrikson & Byron, P.A., She can be reached at or 612-492-7104.

Copyright © 2018 Minnesota Precision Manufacturing Association. For permission to use or reprint this article please contact Nancy Huddleston, publications manager for Precision Manufacturing Journal.


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