by Wynne Caffey
Ramsey, Elmore, Stone & Caffey, PLLC
The national media has been consumed with a variety of headlines of alleged sexual abuse. Learn more about the forms of sexual harassment and the employer-employee relationship here.
In the past month alone, national and state media outlets have been replete with headlines reporting alleged abuse of a sexual nature in the workplace – from sexual harassment allegations awash in the presidential campaign, allegations of a system wide cover-up of horrors inflicted on children at Penn State that co-workers turned a blind eye to, and now locally to allegations of the abuse of judicial authority to engage in an inappropriate relationship. Why are these surfacing now? Were there witnesses or co-workers who feared reporting their suspicions or what they saw? Were there systems in place to facilitate the reporting and to take action? Certainly, there is absolutely no excuse for failing to report the assault of those innocent, vulnerable children. Putting aside the moral demands on us to report any abuse of a minor, it is in fact a crime under Tennessee law to not report – fear of reprisal or not. The truth is that no one can really control or fully prevent the actions of one individual; however, the employer-employee relationship lends itself to a great measure of control, prevention, and corrective action.
Forms of Sexual Harassment and Discrimination
Sexual harassment and gender based discrimination are usually not the typical “you do this sexual favor for me, you get to keep your job” scenario that first comes to mind. They are often less direct. What do you do to protect yourself as a worker or a boss?
Policies are not worth the paper they are written on without the support of equally clear, written procedures for handling claims, to include at least:
• A designated person to whom claims should be reported. This person will also conduct the initial investigation.
• A back-up designee to whom claims should be reported in the event the claim involves the primary designee.
• A written, signed, and dated statement from the person reporting the problem.
• Interviews with the reporter to obtain specific facts including dates, witnesses, places, participants, and so on. Ask for the reporter’s permission to record the interview. Do not make consent to record a mandatory part of the reporting process because it might discourage reporting.
• Preparation of a written narrative of the interview to be signed and dated by the reporter, making any changes that the reporter asks to be made to the narrative.
• Interviews with the participants and witnesses. Prepare written narratives in the same manner.
• Assurance that reporting can be anonymous and confidential, at least at the initial stage.
• Potential consequences for sexual harassment, gender discrimination, or retaliating against employees who report the unlawful activity. The listing should include specific disciplinary action, up to and including termination.
The interviews do not have to be conducted in-house by the designee. In fact, to add a layer of protection for all concerned, consider getting an attorney involved as soon as a problem is reported.
Once you have a clear written set of policies and procedures, make certain everyone in the company is aware of them. All employees and owners should be given a written copy and asked to sign an acknowledgement that the policies and procedures have been read. This acknowledgment is kept in the individual personnel files. Don’t stop there. To ensure that the policies and procedures are understood, host periodic staff meetings to explain them and invite employees to ask questions. In addition to helping prevent problems from arising, if a claim is asserted, what occurs in these meetings can impact how the claim is resolved. Any time the policies are revised or amended, get another signed acknowledgment and host another meeting.
For more information, I recommend you go to the websites for the Equal Employment Opportunity Commission website at www.eeoc.gov or the Tennessee Human Rights Commission at www.tn.gov/humanrights.
For The Employee
Read your employer’s policies and procedures for handing this type of complaint. Follow those policies and procedures. Regardless of what steps are outlined, or if there are no written policies and procedures, always document everything. Make an oral report, then follow-up with a written report. Keep a dated copy of your report. Have a witness to the fact that you reported it. Print copies of the emails or text messages that document your claim. Keep a written journal of the activity. Be very specific in the journal, including dates, the names of witnesses, what the circumstances were, who said or did what, and whether or not your employer took corrective action. Write this journal with the thought that it is helping you prepare for future litigation or consulting with an attorney.
For The Employer
I have the same initial advice: Document everything, but as the employer, you are the one charged with legal responsibility, so protect your employees and yourself by adopting clear and easy-to-understand policies to help prevent the problems. Couple this with equally clear and easily understandable procedures for the reporting and handling of complaints. In addition, be willing to take corrective action when it is merited. The basic policies at a minimum should address:
• Prohibiting sexual harassment and gender discrimination. This applies top to bottom, from the mail room clerk to the CEO, and even to your customers
• Company-owned devices like cell phones and computers. You can restrict the use to work-related activities only. You own the devices, so your policy should clearly state that employees should not expect a right to privacy for emails or internet activity they do at work.
• Personal devices. You can restrict if and when these can be used during business hours
• Appropriate work attire
• Intra-office personal relationships
• Sexual comments
• Comments about gender
• Pornographic materials
• Encouraging the reporting of harassment or discrimination
• Prohibiting reprisal or retaliation against claimants or witnesses.
Ramsey, Elmore, Stone & Caffey, PLLC
Westwood Building, 5616 Kingston Pike, Suite 301, Knoxville, TN 37919
865.766.0056 | www.ramsey-elmore-stone-caffey.com