By now almost everyone has heard at least something about the allegations of sexual misconduct against celebrities, politicians and powerful businessmen that are making their way around the country.
The “Weinstein effect,” a phenomenon where allegations of sexual misconduct against celebrities and other people in power are publicized and trigger responses from companies and institutions, may be happening in other places in the nation right now, but the impact can be felt by businesses right here in Clark County.
Amy Robinson, Board chair and shareholder at Jordan Ramis PC who works in employment law, said that as someone who deals with these kinds of issues all the time through her work, she hasn’t really noticed a lot of change. She said that in many ways it has been a continued effort among businesses to make sure their policies are up to date and that proper protocol is followed if incidents of sexual misconduct are reported.
That being said, however, Robinson said there’s obviously a renewed concern and commitment among employers when it comes to allegations of sexual harassment.
“What I’ve seen as a lawyer who advises businesses, most of the people I’m talking with are already concerned about this and that’s why they’re talking to me,” Robinson said. “Having said that, I know there are certainly folks who are not up to speed with those compliance requirements or not paying attention to it, and I hope this will make them realize the importance of it.”
Robinson stressed the importance of employers updating their harassment policies, and also said that she thinks it’s beneficial for businesses to do an annual sexual harassment training update with employees.
“The reality is, this has a triggering effect,” Robinson said. “The conversation in the national media is bringing up past memories for folks, things they may have had no sensitivity about. If this conversation hasn’t already been going on, this has heightened people’s sensitivity and people may have a lower threshold for nonsense. I think businesses need to be prepared for that and recognize that that doesn’t always mean that those concerns are legitimate, but they need to be prepared to be able to respond appropriately.”
Greg Ferguson, an attorney with the Law Offices of Gregory D. Ferguson PC, said he’s seen a bit of an uptick of clients wanting to update their employee handbook/sexual harassment policies, but pointed out that the rules have not changed as far as an employer’s responsibilities.
“More employers are more sensitive to the issue, more sensitive than in the past,” Ferguson said. “Clients right now want to know what actually rises as legal sexual harassment and what they have legal liability for. In the ‘new now,’ the conduct in some circumstances does not rise to the level of what would be required in court for a case.”
Ferguson said that many employer policies have examples of the type of conduct that is not permitted, and the conduct does not need to be severe or pervasive in order to trigger employer responsibility under the policies.
“Policies should be updated annually and training should be done at least annually,” Ferguson said. “Every employer should take every complaint seriously regardless of how minor it might appear and actually do an appropriate investigation. In a court sense, if you do an investigation and take steps to make sure it doesn’t happen again, that’s a defense to most situations, unless you’re a manager.”
Robinson and Ferguson pointed out that it’s important for businesses to understand the two types of harassment that occur in the workplace. The first type is known as quid pro quo (“something for something” or “this for that”). This kind of harassment occurs when someone in a position of authority (a manager, owner of a company, etc.) abuses their authority in a way that has a tangible impact on the subordinate’s job.
“That one, businesses are liable for regardless of their policies and that’s where they need to make sure to stay on top of their training,” Robinson said. “Likewise, there’s a lot of potential liability for the individual supervisor.”
The second type of harassment is when an employee feels they are in a hostile work environment. This means the environment itself is permeated with bias, etc., and something was most likely subjectively offensive to a person. Typically, Robinson said, when this type of complaint is brought up, it has to be something that is an ongoing pattern or something that is offensive in itself, and usually needs to be sufficiently severe or pervasive.
James Sikora, an attorney with Landerholm, P.S., said there are often things that many businesses’ policies don’t have, such as clear reporting mechanisms (who employees should go to if they have a complaint, etc.). Sikora said it’s also really important to communicate to employees through policies and training what is acceptable and what isn’t, and to include examples.
“From a training perspective, making a training as practical as possible is really helpful,” Sikora said. “Traditionally, harassment training has sometimes not been very effective. This is usually due to the fact that it hasn’t been practical, so to speak, because it comes from a legal perspective. Trainings need to have everyday understanding of how to handle situations, and trainings need to give managers tools to address conduct as it arises.”