For many years, employers have sought to prevent sexual harassment in the workplace by implementing anti-harassment policies, training, grievance procedures, and monitoring systems. However, the effectiveness of these measures has been called into question in recent months by the litany of news reports of sexual harassment and assault by public figures at a number of large and sophisticated employers (see, e.g., Samantha Cooney, “Here Are All the Public Figures Who’ve Been Accused of Sexual Misconduct After Harvey Weinstein,” Time (Jan. 26, 2018)), suggesting that, notwithstanding these practices, sexual harassment continues to occur at higher rates than previously had been acknowledged. Employers rightfully have turned to the employment bar seeking advice on what more they can do, beyond what the law may require, to further the goal of preventing sexual harassment in the workplace.
A starting point for any employer would be a loud and clear statement from senior leadership that establishes or bolsters the employer’s dedication to the core value of respect for the individual. By establishing or bolstering that core value, employers can then choose from a toolkit of options appropriate to the employer’s particular circumstances that promote a workplace culture focused on merit and individual performance, rather than on prohibited criteria such as sex. By promoting a respectful and performance-based culture, we believe employers are best able to identify and quickly address behaviors that constitute or may lead to sexual harassment (or bullying, or any other inappropriate conduct for that matter), and ideally before such behaviors become severe or pervasive.
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