Recent high-profile claims of sexual harassment in the worlds of media, politics, business, and entertainment, although shocking, should cause us all to pause and consider workplace behavior and exposure to risk. Massachusetts Business owners and managers may be asking themselves this question:
Is my business vulnerable to a sexual harassment claim?
This is a good question to be asking. Defense lawyers are predicting a record number of sexual harassment lawsuits will be filed against employers in the coming year as women (and men) have become more emboldened to tell their story. An employer whose worker was subjected to harassment is at risk of being sued, even if the employer did not know about the incident.
The costs of sexual harassment lawsuits can be staggering. According to USA Today, some of the biggest awards or settlements have been:
- Ani Chopourian vs. Catholic Healthcare West (2012) - approx. $82M
- Ashley Alford vs. Aaron's Rents (2011) - approx. $41M
- Gretchen Carlson vs. Roger Ailes (2016) - approx. $20M
- Linda Gilbert vs. Daimler Chrysler (1999) - approx $21M
Claims from employees or others related to the workplace are not new and can stem from a number of places, namely perceived or real claims of:
- Sexual and other forms of harassment
- Discrimination based upon sex, age, race, etc.
- Wrongful termination
- Breach of employment contract, and more.
Even before we think about #MeToo for average business owners, as an employer, you should already have policies in place, including a safe way for an employee to report harassment without the fear of losing their job. In the #MeToo era, you should revisit your policy and consider new training for all employees, supervisors and management. Companies should be quick to address sexual harassment, assault, and discrimination in the workplace as it is uncovered.#MeToo for average business owners
A movement that started out in very high-profile, public industries and in politics will soon spread into the hallways of everyday American businesses.
The #MeToo movement has exposed unacceptable predatory behavior in the workplace. It has also shown that there is no room for tolerance of sexual harassment.
There are different types of sexual harassment and as an employer you should be aware of the differences.
Title VII of the Civil Rights Act of 1964 is the federal law which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, or religion. Sexual harassment is a form of sex discrimination in violation of Title VII.
Sexual harassment can include one or more of the following:
- Unwelcome sexual advances
- Requests for sexual favors
- Visual, verbal or physical conduct that is sexual in nature.
What does sexual harassment in the workplace look like?
- Quid pro quo, when usually a superior will make sexual advances or requests as a condition of employment or promotion. This could include a manager threatening termination unless the employee performs sexual favors, or a manager promising a promotion in exchange for sex.
- A fellow employee or superior that may engage in unwanted physical contact, making vulgar or obscene comments, making sexual requests - or in the worst case, rape.
Companies must address sexual harassment through anti-harassment policies and sexual harassment prevention training with the goal of ending harassment rather than just attempting to avoid litigation. The training should be continuous and engaging.
Employers must create and communicate sexual harassment policies and promptly investigate all sexual harassment claims thoroughly.
Businesses should also have a fair and confidential system in place for reporting sexual harassment without risk of retaliation. All complaints should be taken seriously and investigated thoroughly.
Punishments must only have been meted out after the investigation, and the punishment should fit the infraction, including firing if need be.
The final backstop: Insurance
Check out this video from our Trusted partner, The Hartford. We represent The Hartford for EPLI, as well as many other fine companies.
Employers need to protect themselves financially from liability, but also create a safe work environment. Employment practices liability insurance (EPLI) will cover many of the costs associated with a sexual harassment action by an employee, including:
- Legal costs
- Jury awards
In addition, in order to provide a legal defense and pay damages, some EPLI policies may include resources to help business owners create policies and procedures, training and awareness campaigns that may reduce the potential for future claims.
If you don't already have an Employee Practices Liability Insurance Policy at your workplace, a good Massachusetts business insurance agent will be able to help decide what's right for you.
To find out more, read our blog called MA Business Owners, is Employer Practices Liability Insurance for You? and contact us at 617-846-5000 or 24/7 at the button above.
With offices in Danvers & Winthrop Massachusetts, Elliot Whittier Insurance has been awarded the Five Star Award of Distinction from the Massachusetts Association of Insurance Agents. Elliot Whittier Insurance is also a Trusted Choice® Agency and represents multiple insurance companies, so it offers you a variety of personal and business coverage choices and can customize an insurance plan to meet your specialized needs. You can visit Elliot Whittier Insurance online at www.ElliotWhittier.com, or email firstname.lastname@example.org or call 800-696-3947