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Sexual Harassment: Advice for Employers and Employees

Editor’s Note: With sexual harassment cases making headlines on a daily basis, South Florida Legal Guide contacted several leading attorneys for their perspectives on this important issue. Please note that their comments are general in nature and not intended to provide legal advice.

When Does Sexual Harassment Become a Crime?

By Marc Seitles

Most people think of sexual harassment as unwanted advances to another that create a hostile work environment. The normal recourse is reporting the incident to your supervisor or to human resources.

Sexual harassment can become a crime when an unwanted advance becomes intentional, offensive physical contact or a threat of physical contact. In some states sexual harassment can also become a crime if the conduct is deemed be stalking, or involves the sending of sexual images of another without the person's consent.

In Florida, the vast majority of sexual harassment cases are civil matters. However, if the situation escalates into assault and battery or rape, then it becomes a criminal case.

Employers must educate their employees of the seriousness of sexual harassment, and the potential consequences both civilly and criminally. In particular, they should avoid unwanted physical contact or threats that make other workers afraid of assault. Having a clear policy, making sure employees understand the policy and enforcing the policy are important steps for South Florida employers.

Marc Seitles is a partner at Seitles & Litwin, P.A. who focuses his practice on criminal defense matters.

What Should Employees Do?                                                     

By Donna Ballman

If you’re offered a job, promotion or favors if you submit to sexual favors or are threatened that you’ll be demoted, fired or disciplined if you don’t; if the harasser is making comments about your gender or sexual comments; if they’re treating people of your gender differently than the opposite sex or treating you differently, that’s sexual harassment.

Watch carefully and take good notes of comments directed to you and others. Include date, time, place and any witnesses. If it’s just you, then still document it. Don’t worry if there are no witnesses. 

If there are documents like text messages, emails, cards, notes or other inappropriate items, keep the originals or copies. You can take screenshots of anything you can’t print out, and then print the screenshot.

Keep notes and any evidence in a purse or briefcase or write them on your home computer. If you’re fired, you’ll be prevented from taking your notes from work and they may be gone forever.

You’re supposed to give the employer a chance to correct the situation (the exception being if it affects you in the wallet, such as firing, refusal to hire, demotion, denial of a promotion, etc.). Make sure you’ve followed the company sexual harassment policy, if there is one, and reported your concern to the correct person. I suggest reporting it in writing. If you’ve only reported it verbally, follow up in writing. 

Don’t tiptoe around the words “gender-based harassment” or “sexual harassment.” If you report bullying or unfair treatment, you aren’t legally protected against retaliation, but reporting sexual harassment is legally protected. You may want to talk to an employee-side employment attorney before you do this, but it’s not required.

The employer is liable for the actions of a supervisor if that person takes tangible employment action. It includes failing to hire, denial of a promotion, firing, demotion, etc. Otherwise, if the company has a publicized sexual harassment policy, the company is only liable if the employee reports the harassment or the company is otherwise aware of the harassment (such as with the Weinstein case) and fails to take prompt action to correct the situation.

These cases are tough if there is no physical evidence. Your credibility is key, so the better your notes are, the better off you will be. Don’t miss your filing deadline. In Florida, you have 300 days from the date of the harassment to file a charge of discrimination with EEOC, and 365 days to file with the Florida Commission on Human Relations. If you file with one you’re automatically filed with both. I definitely suggest talking to an employee-side employment lawyer when in doubt about your rights.

Donna Ballman practices employee-side employment law at Donna Ballman, P.A. in Fort Lauderdale.

What Are the Right Steps for Employers and Employees?

By Richard Tuschman

Employers should have a written policy that defines and prohibits sexual harassment and contains an effective complaint procedure. Employers should also train their employees to prevent sexual harassment, and lead by example. Training can include watching off-the-shelf videos or attending in-person training. Leading by example means making sexually charged conduct in the workplace unacceptable. And by “workplace,” I mean any place where employees congregate, including off-site meetings, office parties, and trade shows.

From a legal standpoint, employees who believe they are being harassed must use the complaint procedure contained in the employer’s policy. If the employee fails to complain and later files a sexual harassment claim, the employer may not be held liable, at least where there has been no adverse job action such as a termination or demotion.

But the practical reality is that an employee who complains about being sexual harassed may be putting his or her career in jeopardy. Retaliation in this context is illegal, but it happens, and victims of sexual harassment should consider the possibility of adverse consequences if they file a formal complaint. When I consult with employees who are being sexually harassed, I explain both the legal landscape and the practical realities. If they want to make a formal complaint, I don’t discourage that. But they need to know of the possible fallout to make an informed decision.

An employer must investigate and take prompt remedial action against the harasser if the facts warrant it. But that’s easier said than done. An employer must ensure the investigator is properly trained to conduct an investigation and is not biased in favor of the accused. There’s a tendency for companies to fault the complainant, especially when the accused is a high-level executive. Investigators must resist that tendency and get to the truth.

Separating the complainant and the accused is often necessary while the investigation is pending. But employers must not retaliate against the complainant with a transfer to a lesser position. On the other hand, unless the accused has an employment contract, his legal rights are usually quite limited. An employer does not need proof beyond a reasonable doubt to take action against a suspected sexual harasser. Even if the results of the investigation are inconclusive, the employer can take action against the accused to mitigate its risk.

Richard D. Tuschman is a board-certified labor and employment attorney at Richard D. Tuschman P.A. in Plantation.

What About Confidentiality Clauses in Sexual Harassment Settlements?

By April Boyer and Mallory Cooney

As has been revealed in recent weeks, Harvey Weinstein (among others) settled outofcourt with his accusers, but the accusers were prohibited from discussing the settlements publicly due to confidentiality provisions in the settlement agreements.

This revelation has been the catalyst for a debate over the appropriateness of confidentiality clauses in employment settlement agreements, and it has prompted some lawmakers to propose making confidentiality clauses illegal where the claims involve sexual harassment.

For those who oppose confidentiality clauses, the prevailing reason is the assumption that the clauses are being used to hide wrongful or guilty conduct. However, a party’s guilt is rarely the reason for entering into a settlement or including a confidentiality clause. To the contrary, the majority of settlement agreements are entered into without either side conceding liability and with both sides believing they could win at trial.

In employment lawsuits, employers choose to settle cases for a variety of reasons -- most of which have nothing to do with the merits of the accusations. A few examples include:

  • The cost to litigate a case is higher than the cost of a settlement.
  • Defense of a lawsuit causes business interruption.
  • Employee morale is harmed by the distraction of a lawsuit.
  • A lawsuit can harm the reputation of a company.
  • The employer believes in the innocence of the accused, but it also realizes proving the innocence can be difficult.

When these types of factors are the driving force behind a settlement, an employer often adds a confidentiality clause to a settlement agreement to ensure that the employee cannot suggest that the settlement payment is an admission of liability. Employers are often concerned about the ripple effect a settlement can have. In particular, employers worry about the encouragement of false “me too” accusations that can occur if employees suspect that the employer is willing to pay to settle a claim. They also worry about the publicity, rumors, and erroneous speculation that can quickly spread through social media and the Internet.

Despite there being well-established, legitimate reasons for including confidentiality clauses in settlement agreements, lawmakers in New York, California, and New Jersey are attempting to make confidentiality agreements illegal. In New York, a bill is pending that would invalidate any clause in employment contracts (including arbitration provisions) that would require confidentiality on the part of employees complaining of misconduct. As a result of the Weinstein scandal, the bill was amended to make null and void any provision that had the effect of concealing claims of harassment as well as claims of other labor violations, including discrimination, retaliation, and non-payment of wages.

In California, lawmakers are now drafting a bill to prohibit confidentiality clauses in all civil suits concerning sexual harassment, sexual assault, and sexual discrimination, as well as other workplace harassment. Similar legislation is being considered in New Jersey, and lawmakers in other states may soon follow this trend.

Finally, some academics are suggesting that sunshine laws, such as the one that exists in Florida, could be used to force the revelation of repeat offenders, such as Weinstein, where the repeat conduct constitutes a public hazard.

If these laws pass, they may have a chilling effect on employers’ willingness to settle claims before trial. Many employers may prefer to have a jury find the employer not liable than appear to be conceding liability by settling a lawsuit or inviting other employees to threaten a lawsuit. It also may have a chilling effect on employees/victims coming forward and making accusations. Sometimes the employee wants the confidentiality agreement in place so that his/her reason for bringing the claim is kept confidential, or so that future employers are not aware of the threatened litigation against a prior employer.

Settlement agreements are negotiated legal instruments. If two parties agree that a settlement should be kept confidential, the parties should be free to reach this agreement. No one is forced to enter into a settlement agreement. If an employee does not want a confidentiality clause, he/she can say no. Sometimes, an employer will agree to exclude it. Other times, the parties will go to trial to have a third party decide who is right and who is wrong.

April Boyer is a partner and Mallory Cooney is an associate in K&L Gates’ Miami office, where they counsel and represent employers in the firm’s Labor, Employment & Workplace Safety practice.

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