As more high profile sexual harassment cases come to light, it’s not just the men perpetrating these acts that have come under scrutiny, but their employers as well. Questions have been raised as to when employers knew about the harassment and what they did—and didn’t do—to investigate it and stop it. The fall out from such cases can be costly for companies in reputation, employee morale, turnover, trust and the bottom line.
For employers who wish to avoid sexual harassment complaints or judgments, the advice is straightforward:
• Have a written policy prohibiting sexual harassment;
• Train both managers and employees about acceptable behavior;
• Make it clear to whom an employee should report any incident of alleged sexual harassment;
• Take complaints seriously and follow up swiftly;
• Update the policy and training materials regularly;
• Set an example from the top down that creates a culture where it is understood that sexual harassment will not
be tolerated.
Those are the recommendations of the NH Commission for Human Rights, the state agency tasked with reviewing sexual harassment complaints, as well as several lawyers who have represented both victims and employers in NH.
“Have a policy in place, just as you would a policy against drinking,” advises Roxanne Juliano, assistant director of the NH Commission for Human Rights. “Have training for your employees so they’re aware of the policy and have continued training and updating of the policy. Make it clear who people can come to to have their grievances listened to, have reporting procedures that are clear and act on that quickly. Your managers are your role models. Make sure they know what to do when a complaint comes.”
Understanding Harassment
Between 2010 and 2016, the commission received 328 complaints of sexual harassment, defined as any unwelcome sexual advance or request for sexual favors on the job that creates an intimidating, hostile or offensive working environment. That makes it the third most common grievance filed with the commission, after complaints based on workplace retaliation or discrimination because of disability. Sexual harassment in the workplace is illegal under both federal and state law, Title VII of the Civil Rights Act and RSA 354-A respectively. The state law applies to companies with six or more employees; the federal law, 15 or more.
While sexual assault—a criminal offense involving the unwanted touching of another person’s intimate body parts—has a relatively clear definition, sexual harassment can be more nuanced, according to attorney and legal commentator Kirsten Wilson, who has represented both victims and employers in such cases.
Not all sexual harassment cases are as blatant as the ones making headlines with a boss exposing himself or a manager demanding sex for career advancement. “Someone who has someone touch their arm—if that happens on a daily basis, especially by someone who has power over them, that can create a hostile environment,” says Wilson, whose firm has offices in Boston and Portsmouth. “It’s hard to get traction with the general public that these things can be harassment. It’s not flattering if the person has authority over you, has control of your work assignments and your advancement and you’ve made it clear that’s not something that’s appreciated.”
Concord attorney Terri L. Pastori agrees that sexual harassment can be subtle, which makes it all the more important for employers to have written policies. “You can identify the groping but what about the chronic sexual innuendo?” she says. “What about women harassing men, women harassing women, men harassing men? Have a policy that provides meaningful information. Training on that policy, having a policy on retaliation is important. There should be complaint procedures, and it shouldn’t be just one person [who handles grievances] because what if that one person is the accused? It’s good to have people of different genders to go to with complaints so everyone feels comfortable.”
But employers who craft their policies too finely, with long lists of prohibited behavior, risk exposure of another kind, according to Wilson. “You don’t want to create a litigious environment where people complain about others looking at them the wrong way,” she says. “Whatever corporate environment the company decides it wants to have, it has to be clearly delineated. If they get too far in the weeds, it can backfire. The broader it is, the better.” She recommends providing “broad definitions and some examples.”
Reporting Harassment
If an employee is dissatisfied with the company’s response to an allegation or feels uncomfortable reporting it via the employer’s recommended chain of command, she or he can file a complaint with the NH Human Rights Commission. While companies prefer an internal investigation as the first course of action, victims may not. “You don’t have to exhaust all remedies within the company, legally,” says Juliano. “Employees may not want to go to their employer for various reasons, the fear of retaliation being one.”
Filing with the state commission does not eliminate an employee’s opportunity to be heard by the federal Equal Employment Opportunity Commission (EEOC), the federal agency that enforces civil rights laws against workplace discrimination, including sexual harassment cases.
The types of prohibited behavior are similar under both federal and state laws, though state law requires complaints be filed within 180 days of “the last date of harm” compared to 300 days under federal law. When someone files a grievance with the state commission, they can simultaneously file with the EEOC, Juliano says.
Once a complaint is filed, the commission investigates, though often the parties settle, sometimes with the help of mediation, before the case is heard by a commissioner.
If it proceeds, one of the agency’s seven commissioners considers the evidence and determines whether there is probable cause to believe harassment occurred. If so, a public hearing is held, where another three commissioners hear the case with witnesses and cross-examinations, much as in a trial, and render a decision. If they find for the complainant, they could order reimbursement for lost wages, benefits, attorneys’ fees or compensatory damages for the complainant, as well as fines that would go into the state’s General Fund.
Some 25 percent of the cases heard in 2016 were found to have probable cause, Juliano says, but that doesn’t necessarily reflect the number of cases that had merit but were settled earlier in the process.
An Effective Response
To avoid having a complaint advance that far, attorneys recommend that companies have policies that are not merely rote documents but reflections of a true culture of concern. “EEOC did a study on the effectiveness of workplace training and the results were disappointing,” says Pastori. “Having people watch a video or sign off on a policy without reading it is really not helpful. It’s better if the tone is set from the top down at a company as to what expectations are as to how people should treat each other…There’s a lot more to do in terms of adjusting the culture in our workplaces.”
“If you don’t have the tone from the top down,” she adds, “no training in the world is going to help the company.” If a complaint is received, Pastori says, “Investigate it and take it seriously. Interview the person complaining. Interview the person being accused. Interview other witnesses and do a thorough job. Collect documents and follow through and be reasonable in your scope and do it quickly so it’s not hanging out there for an unreasonable period of time.” At the end of an investigation, if it is determined that sexual harassment or other inappropriate behavior occurred, take prompt remedial action, including discipline that is designed to end inappropriate conduct, Pastori says. Interim measures to protect the complainant during the investigation may also be appropriate, she says.
Nashua defense attorney Robin Melone, who represented former St. Paul’s School student Owen Labrie in his efforts to seek a new trial after a misdemeanor sexual assault conviction, notes that any policy should address both on- and off-the-job expectations, particularly with regard to social media, and that accuser and accused should be kept separate once any allegation has been made.
Questions about employee harassment outside the office or via social media are thornier, says Wilson. “Someone may send a message or make a joke on Facebook,” she says. “Does that fall into sexual harassment? It’s a really gray area for most people .… We have this patchwork quilt lifestyle now. It makes it more difficult. People we work with are also our friends.”
Juliano says her agency would certainly consider a claim of harassment outside of the office, depending on circumstances. “There could be liability if it’s a company-sanctioned event,” she says. “It’s when you have two people who decide to go to a bar on a Saturday night on their own; it would be hard to impugn the employer in that circumstance. But if Sam’s been harassing Mary at work and starts to drive to her house and leave her gifts and starts to send her texts and emails or Facebook posts, as long as she’s reporting [to her employer], things can happen off-site and still put the company at exposure.”
One standard set by the NH Supreme Court is that employers can be held liable under state law for sexual harassment if the employer knew or should have known it was taking place and did nothing to stop it. “’Should have known’ is more difficult [to prove],” says Juliano, as opposed to a case where 30 people on a production line routinely witness one worker harassing another.
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