We’re in the middle of a pandemic. While telework and ‘social distancing’ don’t eliminate the possibility of a sexual harassment claim, let’s face it, we’re not exactly in the same #MeToo world as we were last year. But that doesn’t mean that businesses can take sexual harassment any less seriously.
Because you never know when an incident may arise. Like maybe…
A sexual harassment lawsuit against a hockey team’s mascot.
Over the weekend, several news outlets like TMZ (here) and The Daily Mail (here) reported that a female member of a National Hockey League team’s “Ice Crew” filed a sexual harassment lawsuit against the man who dressed up as the team’s mascot. The plaintiff claims that the defendant had made lewd jokes and other inappropriate sexual comments, and would leer at her body.
In addition to the hostile work environment allegations, the plaintiff alleges that the defendant also exercised some supervisory authority by fired her after she refused his advances.
Let’s pause for a second here and list the five elements of a hostile work environment claim:
- the plaintiff suffered intentional discrimination because of his/her sex,
- the discrimination was severe or pervasive,
- the discrimination harmed the plaintiff,
- the bad behavior would harm a reasonable person in like circumstances, and
- the existence of respondeat superior liability.
One example of respondeat superior liability is if the plaintiff can show that the bad behavior culminated in an adverse “tangible employment action” (e.g., she gets fired). In that situation, the plaintiff wins. Otherwise, without a tangible employment action, the defendant employer has a two-part affirmative defense. First, the defendant must show that it exercised reasonable care to prevent sexual harassment in the workplace (think: handbook, training). Second, the defendant must show that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that the defendant offered. In other words, the plaintiff waited too long to complain or never complained at all.
Getting back to the lawsuit, we don’t know whether the plaintiff can prove her sexual harassment claim.
But, the team has now suspended the man who dresses up as the mascot and is also investigating. While no amount of remediation is now going to impact the merits of the plaintiff’s claim, suspension and investigation can ultimately protect other victims. It’s a step that your business should consider — even during a pandemic — to address complaints of sexual harassment.
How else can companies address harassment in the workplace during a pandemic?
Pre-COVID-19, there was a growing trend among states and localities to require annual anti-harassment training. Your mileage may vary, but many have not suspended those requirements. Notwithstanding, regular training mitigates the risk of discrimination claims.
But I get it. You may not have enough capacity now to coordinate anti-harassment training for a remote workforce. So, allow me to plug the U.S. Equal Employment Opportunity Commission’s Training Institute, whose offerings include an excellent program on maintaining respectful workplaces. I’ve borrowed from it generously for client training.
If you attended The Employer Handbook free Zoom session with the EEOC on August 14, 2020, you heard us talking about the EEOC’s education outreach. (If you missed us, btw, shame on you! Just kidding. Head over to The Employer Handbook YouTube Channel and watch it here.) Also, we focused on EEOC mediation as another way to mitigate risk, albeit in a way that is less proactive and more reactive (i.e., after the employee has filed a Charge of Discrimination). But if your company finds itself defending a Charge, consider EEOC mediation. It is generally successful, and you may end up spending way less on a settlement than the cost of an attorney to defend you.
What are you doing during this pandemic to maintain a respectful workplace? Email me and let me know.