By: Matthew H. Fry, Esquire
[email protected]
Recently at the Women in the World Conference, attorney Nancy Erica Smith warned, “HR is not your friend. HR will not help you.” Ms. Smith recently represented former Fox News anchor Gretchen Carlson in her sexual harassment suit against network founder Roger Ailes. “The first call you make is to an attorney …. You need to find out what the laws are,” she added.
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Similar statements were made by US Supreme Court Justice Clarence Thomas’ accuser Professor Anita Hill, who warned in a Washington Post op-ed: “There are still companies that pay lip service to human-resources departments, while quietly allowing women to be vilified when they come forward.”
But do these warnings universally apply to every company’s Human Resources department? The answer is: it depends upon the effectiveness, strength and integrity of your Human Resources department.
In a perfect world, if you’re an employee who has been subject to sexual harassment, an attorney should not be the first person you need to contact. Ideally, it should be your Human Resources department that drives any investigation about sexual harassment complaints in the workplace, and enforces the consequences as necessary in accordance with your company’s written and clear anti-sexual harassment policy. The Human Resources department is supposed to be the employer’s first line to ensure that a company that is made aware of a sexual harassment complaint takes prompt and appropriate investigative and remedial action under and in strict compliance with this policy.
However, as recent events suggest, companies do not always live up to this standard.
At the outset, all companies, both large and small, must have written policies against sexual harassment. The policy must provide that any person who feels subject to sexual harassment should file a complaint with the Human Resources department, which will then take all necessary steps to promptly and appropriately investigate the complaint, make a reasonable determination, and take any proper remedial action that is warranted, which can include discipline or termination of any offending employee.
However, in light of the recent allegations against such companies as Fox News and Uber, more and more observers believe that these kinds of policies are not being followed in practice, and are sometimes blatantly violated. In the worst case scenario, the complaining employee is not only ignored, she or he is also retaliated against for making the complaint – which is a blatant violation of the law.
So why are some companies allowing this kind of behavior to continue? In larger companies, it’s possible that some executives are just not that serious about enforcing such policies, particularly where the offenders are high performers in the company. This lack of enforcement can not only devastate morale in the workplace, but it can also create a hotbed for litigation, as the harassment will only continue under this type of failing corporate culture.
Thus, particularly at large companies, it is not a lack of a harassment policy, but the fact that such complaints are not taken seriously, are ignored, or engender retaliation that is the real problem, particularly when such complaints are directed at “star” employees.
With small companies, there may be no written policy at all, and that could cause a myriad of problems when employees are not aware of the rules of proper conduct in the workplace and management is left to its own devices to investigate (or not), and to take remedial action (or not). For example, while telling an R-rated joke when you are out socially with close friends may not get you into trouble, doing so in the workplace could be considered offensive and unwanted. Anti-sexual harassment policies need to be in writing, clear, concise, made well-known, enforced, and kept current and in compliance with federal, state and local laws.
So, if you’re an employee, while you should promptly report sexual harassment complaints to your HR department and document that report, if you come to believe that your HR department is not adhering to your company’s own policy or – worse yet – your company has retaliated against you for making the complaint, the very next call you make should be to a qualified attorney.
If you’re a business that needs help with drafting or updating appropriate policies, or are an employee who has not received a proper response from your HR department, the attorneys at the Law Firm of DiOrio & Sereni, LLP can help you. Contact Matthew H. Fry, Esquire at 610-565-5700, or send an e-mail at [email protected].
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