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Casting Shadows: Preventing Sexual Harassment in the Workplace

The story of a powerful film producer who uses his position to manipulate or abuse aspiring actresses into sexual activities would be seen by most filmmakers to be a bit clichéd and unlikely to win them an Oscar for Best Original Screenplay; but the extent to which the allegations of rape, sexual harassment and bullying have mounted against Harvey Weinstein, one of the most influential movie producers in America, is certainly something that has not been seen before in Hollywood.

Mr Weinstein is now being investigated by police in both the US and the UK, has been fired from his role in his own company, The Weinstein Group, and has seen his wife publicly declare that she will be leaving him. Meanwhile the fallout is creating a huge talking point across the industry, with many men and women expressing that Mr Weinstein’s behaviour is just the tip of the iceberg and that such conduct is endemic in the movie-making business.

The number of victims and extent of the abuse continues to appal, whilst major questions have been raised about how such behaviour was allowed to continue unchecked for so long. It is clear from a number of the victims’ accounts that they either afraid to speak out against someone so powerful for fear of harm to their livelihoods, or when they did speak out the complaints fell on deaf ears. The Weinstein Group, and perhaps the film industry more widely, is now counting the cost of failing to support victims of abuse, harassment and bullying.

Sexual harassment in the workplace is sadly nothing new. 10 years ago, nearly 27,000 sex discrimination claims (including sexual harassment) were raised in the Employment Tribunals. Whilst this has fallen dramatically to just under 9,000 last year, there is a notable drop in total claims since tribunal fees were introduced in mid-2013. The number of claims has in fact doubled in two years following the introduction of fees, and with such fees now being abolished following the Supreme Court’s decision this year that tribunal fees are unlawful the number of claims is likely to begin rising again.

So what can employers do to ensure that their staff are (a) protected from harassment or abuse, and (b) supported when such conduct occurs?

Employers should start by understanding what harassment means. The legal definition of sexual harassment is “unwanted behaviour of a sexual nature” which violates the individual’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment. It is not necessary for the offender to have an intention to harass the victim or to know in advance the behaviour is unwanted; tribunals will assess the subjective viewpoint of the victim in determining whether the conduct had the effect complained of. However, this will be subject to reasonableness; reacting sensitively to a remark heard out of context and not intended to offend is unlikely to meet the threshold. 

Employers are liable for acts of harassment done in the course of employment. This includes not only acts of harassment by colleagues but also by third parties. Most sexual harassment cases are (thankfully) not as overt as a powerful figure demanding sexual favours from a subordinate; many will arise from behaviour that may initially be dismissed as “banter”. This can create headaches for employers. On the one hand, the employer wants to protect their staff from unwanted conduct. On the other, they do not want to be seen as creating a joyless, politically correct environment. It is ultimately for the employer to judge the context of jokes and “banter”, and nip it in the bud when it oversteps the line. Certain male-dominated industries, including banking, are notorious for misogyny and sexist “banter” that has led to a number of high profile harassment and discrimination cases.

Employers may be able to defend a claim of harassment by evidencing that they took all reasonable steps to prevent sex discrimination from occurring in the workplace. There are a number of steps employers should take. First, they should have an anti-discrimination policy in place and communicate it to their staff. This should explain what conduct is unacceptable and the consequences of such conduct, including disciplinary action.  The policy should be reviewed regularly.

Second, staff should receive training on recognising and preventing harassment.  This should include ensuring that employees understand the relevant reporting procedures when they witness or experience such unwanted conduct, as well as the grievance procedure for raising concerns about harassment. Managers in particular should be trained on how to conduct investigations and grievance hearings to consider the issues appropriately and sensitively.

Third, complaints of harassment should be considered seriously in all cases. Many employers fall into the trap of sweeping lower level issues under the rug or turning a blind eye to them in order to avoid possible conflict or awkwardness. They may even offer a payoff for the employee to leave quietly in order to protect an important employee in the office, such as their best salesman or a high profile executive. However, this can result in an unsuitable culture arising in the workplace that may eventually lead to a bigger problem.  If it is ultimately found out that complaints were covered up rather than addressed, it is a potential legal and PR disaster.

If anything can be taken from the Weinstein scandal, it is that it can take just one complaint for an entire negative history to raise its head. Dealing with those issues properly at the time, and taking appropriate corrective action, will ensure that there are no skeletons to appear from the closet in the future.

 

Matthew Cranton - Employment & Immigration Partner

 

This article was first published on 16 October 2017 as part of our Employment Law Update series. Register above to receive our updates as soon as they are published, directly to your inbox.

This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.