By Kristi A. Hastings, MSBA Certified Labor and Employment Law Specialist
Date: March 2018
I watched with fascination, as did the whole world, when the Harvey Weinstein story broke. The sexual harassment and misconduct exploits of many public figures came to light in rapid succession: Garrison Keillor, Matt Lauer, Charlie Rose, Kevin Spacey, Al Franken and so on. People, mostly women, around the world publicly shared workplace sexual harassment experiences, and the #MeToo movement was born.
Since Weinstein, we have seen an uptick in sexual harassment allegations in outstate Minnesota:
- A public official who has made female employees uncomfortable for years due to unnecessary touching during meetings (rubbing shoulders, patting hands, sitting extremely close, standing over the back of chairs lording over female employees)
- An employee who resigned and then reported that she had been engaging in, using her words, “nonconsensual sex” with a co-worker for months and didn’t know how to stop it
- A supervisor who frequently made comments at work using sexual innuendo (“I guess they want us to just bend over and take it!”)
The tolerance for sexual harassment and any interplay between work and sex is at an all-time low. Public employers need to take time now to audit their workplaces, policies, procedures and practices in the post-Weinstein world.
1. Check Your Culture
Even within largely healthy organizations, a pocket of unhealthy behavior can exist unnoticed. More frequently, I have found that the unhealthy behavior is well-known, but the entity is not willing or able to address the behavior.
I often refer to this as the “that’s just John being John” syndrome (insert any name you would like into the phrase). If the behavior of certain employees is explained away as “just X being X,” it is likely that the behavior is problematic, whether it be anger, discriminatory beliefs, sexualized comments or actions.
Are you picturing someone in your entity right now? If you are, the time has come to address it.
2. Take Allegations Seriously
It is a commonly held misbelief that sexual harassment allegations must be made in some magical and formal way. In reality, sexual harassment allegations can be verbal, contained in an e-mail or resignation letter, posted online, observed by a co-worker or citizen, shared in the break room, inferred from vague comments made to human resources, or submitted in a formal, written complaint.
No matter what vehicle the allegations come in, they must be investigated, either internally by confidential staff or externally by a trained expert or attorney. Immediate steps should be taken to separate the complainant and the subject from each other. Often, this means putting the subject of the allegations on paid administrative leave (never unpaid leave) pending an investigation into the allegations.
3. Train All Staff and Administration
As a labor and employment lawyer, one of the aspects of my practice is to train public employers and employees about areas of potential liability. In the last handful of years, many public entities scoffed at offerings of sexual harassment prevention training. Sexual harassment? That is something from the 1980s. But if Weinstein and #MeToo situations have proven anything, it is that sexual harassment is still alive and well.
Schedule an all-staff annual training and include everyone: your public officials, administration, supervisors and nonsupervisory staff. Training establishes a baseline for behavioral expectations—the foundation of future discipline or termination of employment if the expectations are not met. Make sure that a record of those who attended the training, along with a copy of the training materials, are retained for documentation.
4. Deal with It
The liability stakes are high in sexual harassment matters, especially so when an imbalance of power exists between the subject of the allegations and the complainant. The classic imbalance of power involves someone with supervisory authority over another. But an imbalance can exist in many other ways, including job titles/status, actual or perceived influence in the workplace or with certain decision makers, or periodic assignment of job tasks (with or without actual supervisory authority).
Disciplinary action up to and including termination of employment; prohibiting volunteers, vendors or even members of the public who violate sexual harassment policies; canceling contracts with independent contractors who violate; public censure of elected officials—these are all tools at the disposal of public entities in Minnesota.
Sexual harassment has always existed; the only new development is a heightened awareness of the damage it can cause to employees and the workplace in general. As public entities, we must continually strive to create and maintain a positive and fit work environment for all. Sometimes you have to be willing to take on the most difficult of workplace culture issues in order to do so.