10.31.17 LLM Blog


By: Lisanne L. Mikula, Esquire

Harvey Weinstein, one of Hollywood’s most powerful film executives, has been accused of sexual harassment and sexual assault by dozens of women who claim that Weinstein demanded sexual favors in exchange for the promise of an Oscar-bait role.   Fear of retaliation by Weinstein promoted a culture of silence which left Weinstein’s activities unchecked for decades.  While the particularly lurid allegations against Weinstein seem ripped from a film plot, unfortunately, sexual harassment remains a very real part of the workplace.

A critical part of an employer’s duty to provide its employees with a work environment that does not discriminate and is free of harassment and retaliation is taking steps to prevent and deal with sexual harassment complaints.  The failure to have a system in place may leave an employer exposed to liability for harassment even if the employer was unaware that sexual harassment was occurring.  Employees, meanwhile, must follow the policies and practices of the employer to report any complaint of sexual harassment or retaliation so that the employer has the opportunity to conduct a fair and impartial investigation of the complaint and, if warranted, take steps to remedy the situation.

An employer’s first step should be the development of a clear written policy which reflects the importance of maintaining a work place which is free from sexual harassment and retaliation.  A good anti-harassment policy will not only explain what harassment is and unequivocally state that harassment will not be tolerated, but it should also establish how the employee and the employer should respond to incidents of harassment.  Importantly, the written policy should set forth a detailed and easily understood mechanism by which an employee can make a complaint to the employer when the employee believes there has been an incident of sexual harassment or retaliation.

Periodic training of employees and managers about preventing and reporting sexual harassment helps to reinforce the employer’s policies and procedures and prevent incidents of sexual harassment and retaliation.  The circulation of information, open communication, and guidance is of particular importance to remove the cloak of silence which often surrounds cases of sexual harassment.  This training can be provided in structured information sessions and in written materials; however, less structured and more interactive communications, such as personnel meetings, group discussions, and problem-solving brainstorming sessions present good opportunities to reinforce the employer’s goal of providing employees with a workplace free from sexual harassment and retaliation.

Once a complaint of sexual harassment has been made, it is critical that the employer promptly investigate the complaint and take steps to ensure that an employee who makes a good faith complaint of sexual harassment is not subjected to retaliation for making the complaint.   When investigating a complaint of sexual harassment, the person(s) conducting the investigation must focus on gathering all relevant facts, free from unsupported conclusions or any pre-conceived “gut reaction” to the complaint.   Objective fact-finding is the best basis from which the employer can determine whether harassment has occurred and helps ensure an investigation which is fair to both the complaining employee and the person who has been accused of harassment.

Once facts have been obtained from all available sources, the employer can then engage in the process of analyzing the facts to draw conclusions supported by those facts.  If the employer finds that sexual harassment has occurred, the employer must take appropriate steps to remedy the harassment, which would likely include disciplining the harasser.   Even if the employer concludes that the complaint of sexual harassment is unsupported, however, the employer must communicate to the complaining employee that a thorough investigation was conducted, but that the employer did not find an incident of sexual harassment.  Irrespective of whether the employer finds harassment occurred, where the complaint of harassment was made in good faith, the employer should assure the complaining employee that the employee will not be subjected to retaliation and encourage the employee to report any incident of suspected retaliation.

An experienced employment attorney can assist an employer in developing effective anti-harassment policies, conducting a fair and impartial investigation of complaints, and formulating the appropriate disposition of a harassment complaint.  Employees who believe they have been sexually harassed in the workplace also benefit from the assistance of legal counsel who can help guide the employee through the employer’s process and, if warranted, guide the employee through the process of filing an administrative charge with the appropriate government agency.

The attorneys at the Law Firm of DiOrio & Sereni, LLP can help.  Contact Lisanne L. Mikula, Esquire at 610-565-5700, or send her an e-mail at lmikula@dioriosereni.com

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