By Attorney Brian G. Formella

It is hard to ignore the daily dose of headlines that assert new allegations of sexual harassment or abuse in American society. While the problem of sexual harassment may be analyzed on many levels – personal, societal, historical, cultural, to name a few – sound legal analysis must not be overlooked by employers and employees when considering specific workplace situations.

When sex harassment occurs in in an employment setting, the conduct is likely addressed by Wisconsin and federal law.  Some forms of harassment may suggest criminal repercussions, although many forms of sexual harassment may not be considered a crime, depending on circumstances.

While all bad behavior in the workplace is inappropriate, not all inappropriate behavior may be contrary to state and federal laws.  Inappropriate conduct may not merely be illegal, it may be bad for business, including lowering employee morale.  The Equal Employment Opportunity Commission (EEOC) states that “workplace harassment affects all workers, and its true cost includes decreased productivity, increased turnover, and reputational harm,” all of which is a drag on productivity.  (Select Task Force on the Study of Harassment in the Workplace; June 2016.)

Given the wide range of sexually inappropriate conduct, it behooves employers and employees to know the law.  Sex harassment is a form of unlawful discrimination based on sex.  Wisconsin defines discrimination because of sex to include implicitly or explicitly making or permitting acquiescence and/or submission to sexual harassment a term or condition of employment.  It is unlawful for an employer to permit conduct that has “the purpose or effect of substantially interfering with an employee’s work performance or creating an intimidating, hostile or offensive work environment.”  Substantial interference with an employee’s work performance or creation of an intimidating, hostile or offensive work environment may be established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct to be sufficiently severe or pervasive to interfere substantially with the person’s work performance or to create an intimidating, hostile or offensive work environment.  Usually the offensive conduct must be unwelcome for the conduct to be deemed unlawful under Wisconsin law.

Federal law is similar to Wisconsin law.  Wisconsin law applies to any employer with one or more employees; federal law applies to employers with 15 or more employees.

What should employers do to protect themselves against conduct by employees that may lead to harassment complaints?

1. Review your harassment policy to make sure it is up-to-date and has been recently communicated to your employees.

2. Conduct harassment training for management and non-management employees if you have not done so within the past year. The EEOC recommends that the training be live and interactive, if possible, or computer-based and interactive if live training is not possible.

3. If applicable, conduct appropriate harassment training for your organization’s board of directors.

4. Analyze whether your organization has been unintentionally tolerating or ignoring an employee who has a reputation for engaging in inappropriate behavior.

5. If the allegations of inappropriate behavior or harassment in your organization are widespread or involve someone high up in the organization, consider outside legal counsel to assist with your investigation. Outside counsel will be able to help you analyze legally sound investigation techniques and what, if any, remedial action should be taken.

In conclusion, it is important to recognize that bad behavior is bad for business, whether or not the conduct is against the law.  Consult with your legal advisor to review whether your harassment policies are up to date and whether key employees in your company should have moral turpitude clauses added to their employment agreements (when there are such employment agreements) to assist the employer in terminating employees who are behaving poorly, even if their conduct does not rise to the level of unlawful harassment under state or federal law.  Seek legal advice promptly if you suspect behavior that may violate state or federal harassment laws.

 

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