Who Needs Halloween? Sexual Harassment and Election Season


rockoffsabrinapresnell-2By Sabrina Presnell Rockoff

I come to you this beautiful October day with three scary topics you should likely avoid at any dinner party.  However, as an employment lawyer and breast cancer survivor, I’m going to tackle all of them:  Politics, sexual harassment and cancer.  I’ll start with the last topic first.  October is breast cancer awareness month.  As a survivor of stage 1 breast cancer, I’m living proof that early detection saves lives.  So if you or your loved one has been putting off a mammogram or checking something that seems worrisome, STOP!  Make an appointment today.  It matters – a lot.

Now, on to the other two … This election is testing many of the fundamental ideas we all believe in as Americans:  democracy, patriotism, equal rights and freedom of speech.  Keeping our opinions to ourselves this election season has become increasingly difficult.  Without offering my own opinion on the candidates, one thing is very clear:  sexual harassment is front and center in this election in a way it has not been since the early 1990s.  And history shows us that when sexual harassment is at the forefront of political discussion, we all had best take note. The EEOC reported that charges filed alleging sexual harassment increased by over 60 percent the year following the Clarence Thomas confirmation hearings.  While I would argue, based on my own experience, that companies are now in a much better position to address sexual harassment concerns and claims than they were 10 or 20 years ago, based on the current conversations being had on any cable news show, not all companies, even large, seemingly savvy companies, are doing it well.  You can find the most recent data regarding EEOC charges related to sex harassment here:  https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm

(As a side note, in preparing this post, I found a wealth of statistics regarding EEOC charges at https://www.eeoc.gov/eeoc/statistics/.  If you haven’t checked these out, you may want to take a few minutes and review them).

With all of the discussion of sexual harassment in the news, sexual harassment is on the top of employees’ minds.  Defense and plaintiff’s counsel are more likely to encounter harassment claims in the next 12 months.  As a defense counsel, now is a good time to make sure that your clients know their responsibilities as employers.  Specifically, now is a great time to make sure that clients’ policies are up to date and offer two ways for employees to report sexual harassment. If employers haven’t recently reminded employees of their policies against harassment, now is a great time to do so.  The current discussions all over the news are a convenient way to remind employees that a workplace does not tolerate harassment. Employers should also consider training for supervisors and employees so that they understand expectations and responsibilities as an employer.  If clients perform such training, make sure that they document the training, including the date and topic and have attendees sign in.

As defense counsel, I also find that employers are often confused about their responsibilities related to sexual harassment. If a client discovers that harassment has occurred in its workplace, the client has the responsibility is to take reasonable efforts to make the harassment stop. Depending on the degree of harassment, this can include written warnings, additional training or more drastic measures, such as termination of employment. Regardless of the action taken, the client should always remind supervisors that retaliation against those employees involved in the investigation is prohibited.  Clients should also check back with the complainant several times over the next 12 to 24 months to confirm that the harassment has indeed stopped. Employers should also be aware that employees not only can bring claims of harassment under Title VII, but they also can bring claims of negligent hiring or retention if an employer is aware that an employee has a history of sexually harassing employees and hires the employee anyway or allows the employee to remain employed following a complaint and the harassment continues.

Those of you who are more regularly plaintiffs’ counsel will likely find that employees are more aware of potentially harassing situations in the workplace, and you may find employers more sensitive to these issues as well. You should be prepared to make sure that employees are exercising all of their rights both within and outside an employer’s harassment policies and protections. Consider claims not only under Title VII, but also state law claims of negligent hiring, negligent retention, assault, battery and other related torts that may be more likely to survive a summary judgment claim.

Finally, talking politics at the office may not be advisable as a general rule anyway.  However, this year, talking politics without somehow talking about sexual harassment or gender issues is almost impossible. In this incredibly contentious election season, endorsement of a candidate or candidate’s behavior could be seen as an endorsement of harassing behaviors or discriminatory ideals. Defense and plaintiff’s counsel should be ready to advise their clients accordingly.

This election season has given me all of the scary I can handle this fall.  Let’s skip Halloween and get November here ASAP!

Sabrina Presnell Rockoff serves as managing partner for McGuire Wood & Bissette, P.A. in Asheville, where she represents and advises employers in all facets of employment law related issues and claims. 

Editor’s note: This post originally appeared on the NCBA’s Labor & Employment Law Blog.