The #MeToo and Time's Up movements have sparked a cultural shift in the workplace. Greater awareness is being placed on the problem of sexual misconduct (1) in the workplace and the negative psychological, health and work productivity consequences of these experiences. This has resulted in more open dialogue among employees and, in some jurisdictions, stricter legal requirements for employers.
While it is impossible to tell how many workplaces are increasing their efforts to combat sexual misconduct, anecdotal evidence suggests that employers are looking at misconduct as a risk that must be addressed. Despite these efforts, many employers and employees report continued uncertainty about what constitutes sexual misconduct and what can and should be done about it.
Adding to the uncertainty are new state and local laws popping up around the country addressing sexual harassment. (2) For example, in April 2018, New York State passed a budget including several significant requirements directed at both public and private employers to combat sexual misconduct in the workplace. In May 2018, the Stop Sexual Harassment in New York City Act was signed into law, establishing additional policy changes. Now, New York City employers must be familiar with the new state and city requirements to ensure compliance with each.
What is clear is that these legislative changes were enacted to underscore that every employee, (3) independent contractor, intern and volunteer is entitled to work in an environment that is free from sexual misconduct.
Lately it appears that organizations are more willing to go above and beyond legal requirements to ensure a workplace free from sexual misconduct. Understanding that self-regulation is a must in the current climate, entities are taking the position that even if the behavior does not rise to the level of illegal sexual harassment, it will not be tolerated. For example, SAG-AFTRA is proactively addressing workplace harassment in the entertainment industry by voluntarily creating new workplace policy. Its Four Pillars of Change initiative has introduced a clear code of conduct on harassment with scenario-specific guidance detailing prohibited behavior and vowing to protect members. (4)
Employee benefit funds that are employers and have their own staff must be sure to protect fund employees from harassment and to protect the fund as an entity from liability. In doing so, funds should look not only at the conduct of their employees, but also at the conduct of the fund trustees with respect to fund employees.
Trustees serve in a position of authority with respect to fund employees and must take care and act appropriately when dealing with staff at all times. Funds should consider how to prevent sexual harassment both in the fund office and at off-site meetings and conferences, which can introduce circumstances that may lead to uncomfortable situations as trustees and employees gather at hotels, social events and the like.
What happens if a trustee and a fund employee go to a social business event and the trustee makes sexual advances toward the employee during or after the event? What if a supervisory employee asks to go back to a co-worker's hotel room during a meeting or conference? Employers must position themselves to address these issues should they arise.
What to Do? Employer's Liability and Prevention
Generally, employers are strictly liable for harassment of an employee by an owner, manager or high-level supervisor. The employer will be liable if it was negligent about preventing or stopping harassment and if a supervisor or manager fails to report a complaint or knowledge of alleged harassment. Proactive employers, including funds as employers, will achieve the best results in the changing legal landscape by following these steps.
Step One: Adopt an Antiharassment Policy
As an initial matter, funds should have a policy recognizing that sexual harassment (5) is unlawful. The policy signals to all persons at the fund that...