ensuring #MeToo is #NoMore IN THE WORKPLACE

beginning in October 2017, the #MeToo movement swept the nation and spurred a flurry of sexual harassment allegations and scandal. Though the unlawfulness of sexual harassment is not a new concept, law or policy for most businesses, ensuring you function in a harassment-free work environment has never been more important. Here are our top five tips for ensuring that your work environment is safe, healthy and happy in 2018.

1. Understand the Law

Sexual harassment in the workplace has been unlawful for several decades. In 1986, the United States Supreme Court held Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on sex (among other protected classes), and encompasses sexual harassment. Sexual harassment means unwelcome verbal, visual, non-verbal or physical conduct of a sexual nature or based on someone’s sex that is severe or pervasive and affects working conditions or creates a hostile work environment.

Throughout the years, the Equal Employment Opportunity Commission (EEOC) has issued numerous directives, compliance manuals and related publications aimed at preventing and remedying workplace sexual harassment. Individual states, including North Dakota, have enacted legislation that mirrors federal law, and both state and federal courts have clarified and defined specific illegal conduct that qualifies as sexual harassment, discrimination and retaliation. In short, while sexual harassment is now receiving national attention, the law on sexual harassment is anything but new.

2. Know an Employee’s Rights

If you witness or experience sexual harassment in the workplace, you have a right (and sometimes obligation) to complain either to the harasser or to the company’s human resource department and/or management team. Any workplace conduct of a sexual nature or based on sex should raise red flags. Some examples might include commenting about a person’s clothing, behavior, relationships or body; making sex-based jokes; requesting sexual favors; denying advancements based on someone’s sex; spreading rumors about a person’s sex life; threatening a person for refusing sexual advances; physically blocking someone’s movement; inappropriate or unwanted touching; staring at a person’s body; making sex-based gestures; and displaying or distributing sex-based pictures, drawings, posts, e-mails, etc. If an employee reports this behavior in good faith, the reporting employee — whether a bystander or victim — is protected from retaliation under both federal and state law.

In addition to reporting the behavior to the company, an employee has the right to lodge a complaint with the EEOC or North Dakota Department of Labor and Human Rights (DOL). Once these investigating agen- cies complete an investigation, an employee may also file a complaint in a court of law. Sexual harassment complaints must be made to the EEOC within 300 days of the alleged incident(s), so time is of the essence.

3. Know an Employer’s Obligation

Employers are obligated to take reasonable steps to prevent and/or stop sexual harassment. One of the first questions an investigating agency will ask is whether the company issued to employees a clear sexual harassment policy and complaint process. Companies need to train managers on how to follow these policies and ensure the policies are enforced and all complaints are promptly investigated. All managers, human resource professionals, and business owners should regularly undergo training to identify conduct that constitutes sexual harassment, discrimination and retaliation, and to learn how to respond to employee complaints.

4. Understand a Workplace Investigation and its Importance

Employers greatly alleviate liability by investigating complaints quickly and making legitimate efforts to eliminate any sexual harassment. A diligent workplace investigation will involve interviewing the complainant, accused and witnesses; gathering evidence; corroborating facts; issuing a determination as to whether sexual harassment occurred; and exacting an appropriate response, which may include training, discipline or termination for the harasser. If you are an employer, make sure you conduct workplace investigations. If you are an employee, question whether your employer will be conducting a workplace investigation.

5. Be Proactive

Employers can be proactive in ensuring professional, non-hostile work environments by having clear (updated) sexual harassment policies and regularly communicating those policies to employees. Ongoing sexual harassment training is also essential in ensuring all employees understand what is and is not acceptable in the workplace and under the law. Employees who may be experiencing sexual harassment at work can be proactive by clearly saying “No” and demanding the harassment stops; documenting when the harassment occurs; reporting the harassment; asking about the complaint procedure and any anticipated workplace investigation; involving their union (if applicable); and filing a complaint with the EEOC or DOL if the employer is not being responsive to the situation.