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Sexual Harassment Claims: What Companies Can Do.

Over the last couple of months, the news has been filled with reports of alleged--and often admitted--harassment and/or abuse.

Some common themes in these accounts are instructive for employers:

* In many, the misconduct is described as an "open secret." (Such an allegation, if substantiated, can be fatal in litigation.)

* Companies may be more tolerant of bad behavior when the harasser is ultra-successful or powerful.

* Serial harassers tend to repeat a pattern of conduct.

* When complaints are substantiated but no meaningful corrective action is taken, those with knowledge are complicit in subsequent misconduct.

Allegations of workplace harassment run the gamut: sexual assault, inappropriate physical conduct, sexual propositioning, sexist comments, lewd jokes, inadvertent contact, misconstrued comments.

Not every violation of law or policy should be disciplined the same, but all allegations of harassment must be promptly and thoroughly investigated. In addition to being a best practice, investigations usually provide employers with a defense in harassment lawsuits.

Some complaints are completely unsubstantiated. But when a complaint is ignored or summarily dismissed, the employer has no investigation to rely on in the event of an Equal Employment Opportunity Commission charge or lawsuit. Keep in mind that even when a complaint is not substantiated, there can be no retaliation against an employee who makes a good faith complaint.

The legal standard for actionable sexual harassment is high. These types of claims fall into two categories: quid pro quo harassment and hostile work environment harassment.

Quid pro quo harassment occurs when a supervisor or manager conditions benefits of employment on sexual favors or, conversely, punishes an employee for refusing advances.

Hostile work environment harassment is unwelcome conduct by anyone (including a manager, co-worker or even a client/customer) of a sexual nature or based on gender that is severe and pervasive.

Many complaints concern conduct that is not unlawful but violates company policies and workplace standards.

Employers are wise to promptly and thoroughly investigate all claims. The investigation and its findings should be documented. Emails, text messages and voice messages may resolve many questions.

When you have no witnesses and no documentary or video evidence, findings will come down to a credibility assessment. A jury will make the same assessment if the claim turns into a lawsuit, so just because an allegation is disputed does not mean that no disciplinary action can be taken. Sometimes the complaint is more credible than the denial. If there are multiple allegations of similar conduct, those should be given weight in assessing credibility.

A written anti-harassment policy explaining procedures for reporting a complaint is essential. Training also plays a key role, especially for managers who enforce company policies. And if you do not already have such a policy, consider prohibiting relationships between supervisors and subordinates.

A common theme in these relationship cases is that the subordinates felt no real choice to resist their bosses' power, so the relationships were never truly consensual. Sexual harassment in the workplace is unlawful regardless of the gender of the harasser and the victim. A female, for example, can harass a male or a female co-worker.

Research shows putting more women in management is positive for workplace culture, including more effective responses to harassment. Women remain underrepre-sented in management, and one study found that female CEOs at leading companies are outnumbered by CEOs named John.

Other studies show that harassment occurs less frequently in industries where women are well-represented in key jobs, including management.

And, if that isn't reason enough, gender-diversity in leadership is also good for business.

In 2015, McKinsey & Co. reported that gender-diverse companies are 15 percent more likely to outperform others.

Promote women, reduce harassment, make more money--sounds like a pretty good New Year's resolution list.

MKaemmerling@WLJ.com

Michelle Kaemmerling is a labor and employment attorney and partner at Wright Lindsey Jennings in Little Rock. She can be reached at MKaemmerling@WLJ.com.

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Title Annotation:Commentary
Author:Kaemmerling, Michelle
Publication:Arkansas Business
Date:Jan 22, 2018
Words:654
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