In this episode of PeopleWork, we are joined by Kevin Wicka from The Tarantino Law Firm in Buffalo, N.Y. Kevin is an experienced employment and labor law attorney who came on the show to discuss the complicated topic of sexual harassment in the workplace.
Kevin begins the discussion by explaining the difference between the two types of sexual harassment - hostile work environment and quid pro quo harassment. Then he helps us understand how sexual harassment can occur in the workplace, the steps employers can take to prevent sexual harassment, what action(s) employers should take when a sexual harassment complaint is filed and what employers can do to protect themselves from liability.
Kevin's experience with the law and strong ability to communicate really shine through in this interview. You can watch the full video below. We've also included the full transcription from the interview, helpful links and ways to get in touch with Kevin if you're interested.
Kevin, why don't you start by explaining to us, what is sexual harassment, especially in the ways that employers need to understand it.
There's really two types of sexual harassment. People use that term loosely, but you're really talking about two types of things. One type of sexual harassment is called the hostile work environment, and in that situation, the terms and conditions of someone's employment have been made hostile based upon their sex. That's one way that that occurs. How does that occur? Comments that are made, jokes, touching, certainly the extreme case would be sexual assault, or even simply things such as two people that are talking and someone overhears it all the time of conduct that might be inappropriate based on sex. That can constitute a hostile work environment. Really, what the standard is that they look at is how many incidents occur over what period of time.
There's another form of sexual harassment, which people may have heard of, called quid pro quo. That has to do with an exchange, terms of conditions of employment, preferential treatment being based on submission to inappropriate conduct. An example would be a manager who is willing to promote a subordinate if that subordinate goes out on a date with him or her, or is willing to submit to sexual advances. That's a form of quid pro quo harassment. Or if someone's terminated for failing to go out on a date or something along those lines. That's called quid pro quo harassment, and that is unlawful.
Now let me ask you this. In the eyes of the law, are any one of these types of sexual harassment, hostile work environment or quid pro quo, seen as worse offenses?
Not necessarily. I think that they're very subjective standards, and one of the things that we'll touch on today is they have to rise to a certain level legally, and that may be something different than what the employer is willing to tolerate in their workplace. Just because there may not be liability for one or the other doesn't mean it's something the employer wants in their workplace. There are other things that can be affected as well, such as morale, retention of employees, productivity. These are issues that when you're dealing with, even if there's no liability, can really be a distraction in the workplace.
Okay, so say you're an employer that's watching this right now, and you think to yourself, "Okay, to my knowledge I don't know of any types of sexual harassment that have gone or are going on in my workplace, but this is a serious issue and I want to make sure that I'm doing everything that I can to prevent it." How would an employer go about preventing such circumstances.
The first thing that they should do is look at do they have an anti-harassment policy. Is it contained in the handbook? Have they submitted something separately? These are important things to consider, and the content of those policies is very important. One of the things that the law looks at is do employees have an avenue of complaint if there is a problem. If they have an avenue of complaint, where do they go? What happens so is it the ... What conduct is prohibited, and what do they do if they're subjected to it? It's very important that the employer one, have that, that two, their employees are made aware of it, and three, that the individuals that are tasked with receiving these complaints know how to respond to them.
Let me make sure I'm understanding this correctly. If sexual were to occur, an employer is basically protecting itself by having a policy in place where it clearly states, let's say in the employee handbook or anywhere else, that sexual harassment is not tolerated, and here are the steps that someone can take in terms of avenue for complaints. Should there be any lawsuits that come their way as a result, like they are further protected by simply having that policy in the first place?
Well, that's the first step. The mistake that a lot of employers make is they think, "Well, I have my handbook. I have my policy. We prohibit this and everyone has received a copy of it, so we're good now." That's just only the first step, because if you have an avenue of complaint, and let's say that it's a generic policy that said if you believe you're subjected to sexual harassment, you should complain to one of your managers, and the managers are receiving complaints, and not passing them up, and nothing's being done, what's occurred now is the employee has complied with the policy. They've made the employer aware of it according to the policy, and now the employer can be held liable even though the true decision makers may not be aware of it. So it's important that the first line of defense, the managers, if they are individuals tasked with receiving complaints, know how to respond to them and know what to do.
Okay, so one of the things that you brought to my attention is that sometimes these employees who report sexual harassment will then file a complaint, but there are some instances where these employees, these victims, will experience retaliation from that complaint. What happens in those situations and how can employers try to prevent that?
Well the first thing, again, having a policy that prevents or, excuse me, prohibits retaliation. That goes back to what I just mentioned a minute ago. The individuals who receive the complaint should make it clear to the individual complaining that one, they will not be retaliated against, and there should be an explicit policy prohibiting against retaliation. This is important legally because you can have a situation where an employee may not meet the standard of sexual harassment but then as a result of bringing the complaint, they are subsequently retaliated against and they could have a valid claim for retaliation even where their sexual harassment complaint fails.
In one of our recent discussions, we spoke with an insurance agent named Jeff Leyonmark and he talked about how, well actually the conversation centered around how a lot of times employers are liable for actions that employees take, and through that lens we just talked about when employees drive for the company, and let's say the employee drives for the company, gets into an accident. Ultimately the employer is liable should there be any fallout from that accident. Now what I'm curious is like to what end should employers go to to prevent this? You mentioned how the policy is really just the first step. When I was talking with Jeff, we were talking about personal insurance coverage limits and things like that. I'm not sure that applies to this, but talked about training and other things. How far can employers realistically go to not only protect their employees and prevent this from happening, but also protect their business because at the end of the day they can't always control everyone's actions. What steps do employers go to that extent?
Sure, that's a good question. That concept that you were talking about with Jeff is something called vicarious liability. Essentially that means am I, as the employer vicariously responsible for what my other employee does to another one. That is an important question that is asked in these types of cases. What the courts look at is, is there a policy? Was there training? Were employees trained on what's prohibited? Was there an avenue of complaint? If the employer was made aware of it, did they take remedial action? If they've done those things, you can have a situation where one co-employee sexually harasses another co-employee, and if those steps are in place, the employer can protect themselves from that vicarious liability. There actually are lots of court cases out there where they can establish yes, this employee was subjected to a hostile work environment, but the employer acted appropriately in responding to it, and as a result the employer is not responsible, legally, for what occurred. Some of these small steps, these preventative medicine steps, if you will, can really go a long way toward protecting the employer.
So you got the policy, the training, the avenue for complaint, and then the immediate action following the notification. Those are really the big things. Did I catch all of that?
Those are really the big things, and there are some nuances with each of them that are important. For example, the avenue of complaint, as we touched on a little bit before, it's important that an individual who's tasked with receiving these complaints knows how to respond to them. For example, if an employee comes in and complains about something that another employee did, and the manager believes, "Gee, that really seems something that's sort of innocuous, you were offended by that?" That type of reaction to receiving a complaint can immediately set in that employee's mind, "This manager is not taking my complaint seriously." Even if it's determined as part of a valid investigation that the complaint is unfounded, that seed still may be in that employee's mind that that manager never took it seriously from that initial reaction. Having those managers trained on how to receive those and not give off cues without having done an investigation as to what their preliminary belief may be, those are very important steps. Going from there, the remedial action that you touched on, too, that's important as well. What do you do after you've done your investigation? That's an important step as well that can also protect the employer.
Okay, so now there's two things that I want to unpack out of that, the first of which is what you already touched on in terms of how to train managers how to take the complaint seriously, and move forward, and begin the investigation, but let's talk about training in general. What types of training would employers want to look into company-wide to prevent this and make sure that they're doing everything that they should be doing?
There's really two types of training. One, you want to train your general employees as far as what conduct is inappropriate, what conduct is not to be tolerated in the workplace so that everyone's on the same page, so that there is ... Not only do you want to protect yourself from liability, but you want to make sure that this type of conduct's not occurring for the reasons we discussed earlier, because it has such a negative impact on the workplace. That's the first step. Make sure that people have an understanding as to what is not allowed in the workplace. Second, I think it's important to have a separate training for your management team so that they have an understanding of what to look for among their subordinates, how to react if they see something that's wrong, what to do if they receive a complaint. I think that type of training as well is equally, if not more, important.
You also touched on the investigation. Right? You said that even if, after the investigation, it may be revealed that the complaint was unfounded. Who conducts the investigation? How do they work, and what are potential outcomes of a sexual harassment investigation?
That really depends in large part on the size of the employer. A large employer will often have their own human resource department. They may have individuals that are tasked with investigating that, but a lot of employers are small or medium-sized employer that may not have their own human resource departments, and they may outsource those functions. They could also hire a law firm to come in and do an investigation. Ultimately, there should be interviews that are conducted. There should be, whether there could be emails or social media posts that are reviewed, text messages. There should be a determination that's then discussed among the management and a decision made as far as what action to take after the investigation. Types of things that could be done, you could have a situation where you just simply may need to warn the particular employee who's accused of doing something. You could separate these two employees, move them from one department to another. You could have something where there's some form of discipline, whether it's a suspension, or the ultimate act, which could certainly be termination of an employee who's accused of violating these policies.
So what are the grounds for, let's just say termination?
Well certainly in New York, it's an at-will state. That means you can terminate an employee for any reason, and this is an important distinction because the truly fine legal liability for sexual harassment, that may be a very different standard that the employer would want to look at, versus deciding if they want to terminate an employee, so there could be conduct which maybe doesn't rise to the level of sexual harassment as defined by the courts. For example, they'll look at how many instances have occurred over a period of time. Has it materially affected the employee's workplace? The employer doesn't have to hold themselves to that standard. They could say, "This was a bad decision by this employee. Although I may not be legally liable for that, I am going to terminate this employee because I think this is negatively affecting our workplace." It really is a case-by-case basis that has to be made. There certainly can be analysis of is this a good employee? Is this maybe a one-time bad decision? Could this employee benefit from some training, or is this a chronic offender where we're going to have regular problems with not only productivity and morale, but maybe even legal liability?
What about conduct outside of the workplace? How does that play into all this?
We're seeing that more and more these days. Certainly with the advent of social media, Facebook, Snapchat, Instagram, Twitter. Things that are occurring, people use them sometimes for work. They use them sometimes out of work. Those types of things can affect the workplace. You can also have other quasi-work functions, maybe it's the company softball team, the company bowling team. There could be a holiday party or a summer picnic. Things that occur outside the workplace absolutely can be used to be part of a sexual harassment claim, and they should be things that are considered by employers. Remember, as I mentioned before, the employer has flexibility with the at-will doctrine. If they think that there's something going on that's inappropriate, they can take action against a violating employee.
Okay, Kevin, before we get into how other people can learn more, and follow up with you, and get in contact with you, is there anything else that we haven't covered here that you think is really important? If I could phrase the question in another way, what parting advice might you want to give employers who really want to make sure that they take this seriously, in terms of not just preventative measures but in terms of when actually they're faced with a sexual harassment case?
I guess there's one more thing that maybe we could touch on, and then I'll give you a few of my parting thoughts.
I think one thing that's important to remember too is you're not only, as the employer, responsible for your own employees, but the environment in general. That means third parties that come into your workplace also can cause liability. For example, a delivery driver, a vendor that comes in on a regular basis, maybe is hitting on one of your employees. That person can ultimately affect the environment, and you can be held responsible for that, so your managers should be looking for that. Your employees should be made aware that if that is going on, they can come to you, and you have an obligation to correct that. I think sort of as a parting thought, the one thing that I hear repeatedly from some employers is maybe a frustration as to standards that are considered not acceptable anymore that maybe once-upon-a-time people thought were humorous, or made for a better work environment.
The thing that I would say is that it really is irrelevant what I think about it or what you think about it. The reality of it is is that there are certain things that just are not tolerated anymore, and times have changed. The better approach is to say, "Let's have an environment that focuses on productivity in the workplace, a good place for employees to come and be able to think clearly, and not deal with distractions," instead of focusing on maybe a frustration with standards that are changing that maybe personally people may disagree with, or not. I don't make the rules. You don't make the rules, but they are what they are, and we have to all live by them. I think that that's something to consider when looking at these situations.
Yeah, and I think most of the people who watch this, I mean the majority of our audience are business owners, employers, HR managers, people who work in payroll, and compliance, and things like that, so I think what you just said rings true with all of them, definitely very well aware of that. Kevin, I would love to sit here and chat with you further about this. God knows how much longer we could talk about all the different issues and going into different detail, but time is precious so I want to make sure that we wrap this up, but I also want to make sure that people have an avenue to learn more or get in touch with you if they have any questions, so how would they do that?
You could do it either by calling my office directly or emailing me. Would you like me to give my email address or our firm name?
You know what, we're going to put it all in the video description, in the blog post, the links, we're going to link all that up for you, so as long as they know that they're welcome to reach out to you, I think that's helpful.
Absolutely. Any way that we could help, please feel free to contact me. I'm certainly willing to discuss these situations because the thing that's very interesting about this area of law is it's always evolving. It's always changing, and as the expression goes, truth is stranger than fiction, and we certainly see a lot of that in this business.
Well said. Kevin Wicka, an employment attorney with The Tarantino Law Firm in Buffalo, New York. Kevin, thank you for such an incredible discussion. You've added a ton of value. I appreciate your time, and I hope to do this again soon.
Thanks for having me.
Links and contact
Kevin Wicka can be reached by email at firstname.lastname@example.org or by phone at 716-849-6500.