Wednesday, January 3, 2018

Sexual Harassment Prohibitions are Over 50 – So What Gives?

Here’s an interesting piece of information for the new year. Sexual harassment in the workplace has been unlawful for over 50 years! If it were a person, AARP would have already sent it a membership card.  Not since the Senate confirmation hearings of Justice Clarence Thomas has the media focused so much attention on sexual harassment as it has right now. Honestly, one would think this is somehow a new thing that’s happening in the workplace. I guess workplace sexual harassment falls into that same category as many other issues, or diseases, or causes, that don’t really get the attention they deserve until championed by celebrities. We will forego comment on what kind of statement that makes.

The good news is that for whatever reasons, everyone has a renewed interest in ensuring that workplaces remain free of harassment and that proper measures are in place to address this misconduct if it does occur. We daresay that few industries remain untouched by this new found focus, including the judiciary itself.

It appears, based on events over the past weeks, that even the judiciary, the group that ultimately rules on whether an employee has engaged in or been the victim of sexual harassment, is likely guilty of the same offense. The issue bubbled to the surface when complaints were leveled at 9th Circuit Court of Appeals Judge Alex Kozinski. Allegations of improper sexual behavior towards his female law clerks and other women led to his resignation from the bench on December 18th of last year.

Then, Chief Justice John Roberts received a letter from over 700 women, including former law clerks and court personnel, seeking an investigation of the judiciary’s improper behavior. In response to these events, Justice Roberts has established a working group- 
“to consider whether changes are needed in our codes of conduct, our guidance to employees — including law clerks — on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints.”

It is undoubtedly true that the brighter the spotlight on a problem, the more likely the problem will be addressed. Now more than ever, employers need to encourage their employees to take steps to stop harassing behavior in their workplaces. Proper investigation and protections are important, but prevention is possibly even more important. We lawyers like to see our clients have policies that prohibit harassment of any type. Let’s face it, though, telling someone not to be offensive or act improperly is not going to be effective if they just don’t “get” why it’s wrong behavior in the first place.

The key to prevention is to get people to really accept diversity in the workplace. If everyone is seen as equally deserving of the respect to which each employee, manager, supervisor, CEO, shareholder or the like feels they deserve for themselves, then it is far less likely that harassment, whether gender based or based on some other characteristic, will occur. It’s like teaching adults the golden rule again: "do unto others as you would have them do unto you". Unwelcome behavior is offensive regardless of who is the unhappy recipient. To achieve this, employers must spend the time and money to turn the spotlight on the subject in their workplace; to re-teach the golden rule.

The Labor and Employment attorneys at Ancel Glink have trained thousands of employees to recognize and stop inappropriate behavior (both their own and from others) and have trained their supervisors and managers how to recognize and address unwelcome behavior. We’re happy to assist in preventative training in your workplace, too.

In the meantime, it’s also interesting to wonder if those Senate confirmation hearings of Justice Clarence Thomas would have turned out differently today.