Policies require revision

Employers take fresh look at how to deal with sexual harassment

The rising wave of sexual misconduct scandals involving men from Hollywood to Colorado’s halls of power has employers on high alert.

They’re scrutinizing and updating their internal sexual harassment policies and adding new training sessions. Some are calling on outside legal and human resources help. The point: They intend to make sure they are doing all they can to provide safe, comfortable, legally compliant workplaces for employees while reducing their own risks.

“In general with the #MeToo movement, I think many, many employers are re-emphasizing their policies against sex harassment and the education efforts for their employees,” said longtime Denver labor attorney David Stacy, referring to the social media movement that began last fall. “And more employers are having their lawyers advise them throughout the process of investigating and discipline, if appropriate.”

Stacy said he is fielding more calls from clients on the issue over the past few months.

Denver-based nonprofit the Employers Council — formerly the Mountain States Employers Council — introduced a new online sexual harassment seminar for its more than 4,000 member companies in January in response to increased inquires about the topic. The webinar, which 200 to 300 companies have tuned in to so far, covers basics such as standard

policies, employee education and legally mandated investigations that must be performed in the event of a sexual harassment allegation, said Lorrie Ray, the council’s director of member engagement. It doesn’t stop there.

“A third thing we didn’t talk about as much before is how do you create a workplace where people are going to come to you if they are having any problems whatsoever?” Ray said. “And … how you create an environment where this just doesn’t happen?”

The webinar emphasizes having zero-tolerance and safe-to-tell policies in place and the need for bosses to lead by example when it comes to acceptable workplace conduct.

Even companies with clean records have contacted the council since news of Hollywood producer Harvey Weinstein’s alleged track record of sexual abuse broke in October, Ray said. Those allegations helped launch the #MeToo movement, with women and men speaking out publicly about their experiences, usually perpetrated by bosses or others in positions of power.

Colorado has seen its share of reckoning. Denver Mayor Michael Hancock admitted this week to sending “inappropriate” text messages to a detective on his security detail in 2012, which she described as sexual harassment. State Rep. Steve Lebsock, D-Thornton, faces an expulsion vote Friday in the Colorado House of Representatives for multiple allegations of sexual misconduct. The state is among the entities that has brought in outside help, contracting the Employers Council to investigate Lebsock and other legislators.

Officials with the U.S. Equal Employment Opportunity Commission say the agency has seen a surge in sexual harassment calls. However, the most recent public statistics available through the agency only run through Sept. 30, the last day of the fiscal year that began Oct. 1, 2016. Over that time, the EEOC fielded 84,254 discrimination claims nationwide, spokesman Joseph Olivares said. Of those, 6,718 included a sexual harassment component. Just 35 resulted in lawsuits, EEOC statistics show.

The agency defines harassment at work as “unwelcome conduct” based on race, color, religion, sex or other characteristics. It becomes unlawful when enduring the conduct “becomes a condition of continued employment” or is “severe or pervasive enough” to create an intimidating, hostile or abusive environment.

Isolated inappropriate comments often don’t meet the threshold, according to Stacy, though they may still warrant internal employee discipline.

In Colorado, 190 sexual harassment complaints were filed with the EEOC and state or local agencies during the 2017 fiscal years, 156 of which came from women. In fiscal year 2016, Colorado workers filed 196 complaints.

Kidney-care giant DaVita is among the Colorado-based businesses putting its sexual harassment policies under a microscope. Spokesman Skip Thurman said the company of more than 76,000 employees is re-examining and retooling its sexual harassment training curriculum to make sure it is up to date and “sets the right tone.”

Gary Goldberg, CEO of Greenwood Village-based Newmont Mining Corp., sent a memo to his company’s 24,000 employees and contractors in January, calling sexual harassment “a particularly heinous form of intimidation and exclusion.”

“If you have experienced harassment, I urge you to take action by reporting it so we can investigate and take action,” Goldberg wrote. “We cannot create an inclusive work environment — where everyone has the opportunity to contribute and develop — if we tolerate sexual harassment.”

No matter the number of reported sexual harassment cases in the country, it’s only the tip of the iceberg, said Todd McNamara, a Denver attorney with nearly 40 years experience representing employees in workplace disputes. That’s because a vast majority of all cases are settled before even seeing a courtroom.

The #MeToo movement has exposed what has been “America’s dirty little secret for many, many years,” he said. His recommendation to companies is make sure they empower their human resources departments to address sexual harassment or reach out to third-party investigators to ensure they are handled properly.

“It’s been my experience that human resources personnel, with a few exceptions, are tying to do the right thing,” he said. “They just don’t have the corporate buyin that allows them to have the credibility to really get people to stop doing the things that should’t be doing, particularly at the senior levels.”

The Supreme Court first ruled sexual harassment was a form of discrimination that violated Title VII of the Civil Rights Act in 1986. To this day, it remains “tremendously unreported,” according to Mary O’Neill, the EEOC’s regional attorney for the five-state district that includes Colorado. She estimates 80 percent of women and 10 percent to 15 percent of men experience it at work, and just 3 percent file a complaint. Fear of retaliation is often the root cause, she said, particularly because most cases are perpetrated by a boss or superior. In most cases she has investigated, there are multiple victims.

She said the effects of sexual harassment often are severe. Victims become physically sick and their performance suffers due to stress. Most quit their jobs to get away. She said strong leadership and clear consequences are the key to rooting out workplace sexual harassment.

“What I would really say to employers is nip it in the bud,” O’Neill said. “Don’t ask is there legal liability. Ask, ‘Is this acceptable behavior in this workplace?’ And if it’s not, what do we do to make sure this doesn’t ever happen again?”