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Best practices for confronting employee sexual harassment


A strong policy, training, a readily accessible complaint procedure, responsive investigations and a corporate culture that discourages sexual harassment are factors that will help employers address this problem, experts say.

Employers should be sure they have updated, sophisticated social media policies that address the role social media may play in sexual harassment, said Gregg M. Lemley, a shareholder with Ogletree Deakins Nash Smoak & Stewart P.C. in St. Louis. Anti-sexual harassment policies should be updated to reflect today's social media, and social media policies should address its potential role in sexual harassment, Mr. Lemley said.

“I think one thing that surprises people in training, particularly supervisors, is that they can be held personally liable” for sexual harassment, said Linda E. Shostak, a partner with Morrison Foerster L.L.P. in San Francisco. Even if the company has insurance or provides a defense, “the company cannot provide them with coverage for punitive damages” because that would be contrary to public policy, she said.

But training alone may not be enough, said Paul E. Starkman, a partner with law firm Pedersen & Houpt in Chicago.

Executives in particular still may not believe the issue applies to them, so “you've got to develop the culture where people feel they don't need to put up” with sexual harassment, where employees “can let someone know and something actually will be done about it,” he said.

Diana L. Hoover, a partner with Hoover Kernel L.L.P. in Houston, said there should be “frequent and regular communications with the employees, and I don't mean standing up” in front of a room and lecturing employees about it. Instead, this requires “truly being out on the floor, in offices and branches...and understanding what the culture is and understanding what happens outside of your training room,” she said. Senior managers should take “an active role and responsibility to make sure that what is modeled in the classroom is reflected in the workplace.”

An easily accessible complaint and investigation procedure also should be in place. Many companies below the Fortune 200 level “do not make the complaint procedures as robust as they should,” so employers “don't get the reports” of sexual harassment, said Mr. Starkman. He added that workers should be able to make complaints anonymously.

Many sexual harassment claims “can be resolved short of termination, and that pretty much requires a good investigation in terms of who was involved: Were people really offended? Was it relatively minor? Was it relatively major?” said Joseph R. Harkins, a partner with Littler Mendelson P.C. in Washington.

“I think those are the key steps to let employees know that their complaints were taken seriously, and that has really sort of a twofold benefit: One is prevention and two is resolving things before they get out of hand,” he said.