EMPLOYMENT LAW: EMPLOYER MYTHS, MISTAKES & MISUNDERSTANDINGS (NO. 1):
[This article is one of a series of articles intended to identify and discuss some of the mistakes employers make, and misunderstandings thatemployers have with respect to employment laws. It is not intended and should not be construed as legal advice.] by Brad Adams
“I don’t need to worry about having a policy prohibiting sexual harassment in my workplace because all of our employees are very close. We are like a family.”
Some of the worst sexual harassment cases I have defended involved the so-called “close-knit” workplaces where employees generally got along well and routinely socialized with each other. In fact, it is precisely these types of workplaces that, in many cases, provide fertile ground for sexual harassment claims. For example, employees that are “close-knit” may be more inclined to socialize away from the workplace. Further, employees (even management) may be more likely to engage in inappropriate conduct “outside of work.” They also may wrongly assume that misconduct that occurs away from the employer’s offices or facility cannot subject the employer to legal claims.
Moreover, such off-site socializing often involves the consumption of alcohol, which may lower inhibitions and contribute to employees engaging in inappropriate conduct. Even within the workplace itself, employees who have relatively close relationships with each other may be more apt to engage in behavior that they would not dare to engage in around a client or even a stranger.
For example, if Jim considers his co-workers to be “friends,” he might think it is okay to send a group email to them with an offensive cartoon, joke or even pornography (believing that either his co-workers will appreciate it or, even if they are offended by it, will not take any action that might get “their friend” into trouble). In this example, if Jim gets positive feedback from some co-workers and others, who are offended, simply ignore it (because they do not want to get Jim in trouble), Jim might well continue to send similar (perhaps even more offensive) emails on a regular basis.
Other co-workers might even join in. In this way, the employer could face a situation where offensive conduct is quite pervasive in its workplace. Management, however, has no idea about this misconduct because it is occurring electronically, and the co-workers who are offended do not report it either because they do not want to get Jim in trouble or they do not, in the absence of a sexual harassment policy, know what to do about the situation. The takeaway here obviously should not be that collegiality or even close relationships in the workplace should be discouraged. To the contrary, a workplace where co-workers get along well and socialize from time to time can, among other benefits, promote good morale and job satisfaction and increase productivity.
Instead, the takeaway is that no employer should think that just because the workplace is close-knit, it need not concern itself with taking appropriate measures to prevent and address sexual and other harassment in its workplace.
While effective policies and training on harassment certainly provide no guarantee that such misconduct will not occur, such measures certainly diminish both the likelihood that harassment will occur and, if it does, that it will go unabated. In the example above, had Jim been provided with a sexual harassment policy and received training on it, he may well have refrained from sending the inappropriate emails.
Or even if he had sent the emails despite his knowledge of the policy against it, one or more of his co-workers may well have reported the conduct. Further, even assuming for the sake of argument that nothing would have changed in that example, the fact that the employer had a sexual harassment policy and provided related training on the policy would place the employer in a much better position to defend against a legal claim alleging sexual harassment.
In sum, policies against sexual and other forms of harassment and related training are extremely important for employers, even those who have a close-knit group of employees.
Broadly speaking, policies prohibiting harassment should be easy to understand, should be regularly communicated to all employees and should include the following: A clear explanation of the types of prohibited conduct (including examples):
- A statement that the policy applies to employees at all levels as well as applicants, clients/customers, vendors, and others;
- An explanation that the policy applies not only to sexual harassment, but other forms of unlawful harassment which also should be properly identified.
- A statement that employees are encouraged to report any conduct believed to be prohibited by the policy
- A description of the complaint procedure, which should be easy to access and should include appropriate alternative avenues for complaining. For example, the policy should not limit the complaining employee to first reporting the issue to his or her immediate supervisor, who could be the harasser
- An explanation that the employer will undertake a prompt, impartial and appropriate investigation in response to any complaint
- A statement that the investigation will be kept confidential to the extent possible
- A statement that a complaining employee will not be subjected to retaliation for making the complaint
- An assurance that the employer will take prompt and appropriate corrective action when harassment is found to have occurred.
* Additionally, employers should have employees sign and date an acknowledgment form, acknowledging their receipt, review, and understanding of the policy.
 Brad Adams is an attorney in the Employment Law Group at Emmanuel, Sheppard & Condon. Mr. Adams has practiced in the area of employment law for the past 18 years and is admitted to practice law in Florida as well as Alabama and Georgia. Mr. Adams was previously a shareholder with Littler Mendelson, P.C., a national labor and employment law firm.