Sexual Harrassment In The Station Workplace Redux - What's A Broadcaster To Do?

By Gregg P. Skall and Richard Rainey
Womble Bond Dickinson (US) LLP

The sexual harassment, #MeToo movement careened into our lives about a year ago. In our previous article last February, "Sexual Harassment? #MeToo Broadcasting Industry ... Your #TimesUp," we explored the history of sexual harassment in the broadcasting industry and some common forms of behavior that can lead to claims of sexual harassment and some general principles for employers to live by.

Since then, it would seem that, rather than fading away, the issue gets new energy on a regular basis. Recently, the Chicago Tribune posted a timeline of events detailing, month-by-month events and ever new claims against a wide variety of industry luminaries ending most recently with Les Moonves of CBS just at the end of July.

And it appears that it's not a one-way gender street. At the end of August, Italian actress Asia Argento, herself a prominent activist in the #MeToo Movement, settled a complaint of sexual harassment and assault levied against her by Jimmy Bennett, a young actor and musician and her co-star in the 2004 film, "The Heart is Deceitful Above All Things." While that instance has been reported as possibly consensual, at the time Bennett was under the California age of consent, and Bennett later claimed that the encounter traumatized him and hurt his career.

So the further question being asked is: What should a broadcast licensee do to avoid allowing their station being caught up in this #MeToo problem? In the February article, I discussed the importance of training for an organization and the types of policies that it should adopt and disseminate throughout the organization. Law firms too are concerned about anti-harassment policies and training. Recently, we did internal training with Richard Rainey of our firm. He joins me in this article to offer the following suggestions.

Reporting Harassment

Here's what your training program should say to all employees, and all officers for that matter.

If you believe you have been subjected to harassment of a sexual nature, you should report it. Don't wait until it's stale news. Report when it happens. If you are not the subject of harassment but you witnessed harassment, you should report that as well to appropriate senior officials in the organization. "If you see something, say something."

While it is okay to attempt to address the issue directly with the individual who made you uncomfortable, you do not need to do that. And if you witnessed behavior that may be offensive, you can choose either to address it with the possible offender or the recipient of the conduct and then report.

Investigation

As management, when a complaint is lodged, it should receive a prompt and thorough investigation - one that is documented! The complaint investigation must be treated as confidential except to the extent necessary to investigate and resolve the issue. If corrective action is necessary, be sure to follow through: Take the corrective action and document the corrective action adopted. With this information included, a report should be made to the complaining party regarding the investigation and what action was taken by the employer.

No-Retaliation

Be certain to adopt and implement a policy a strict no-retaliation policy for employees reporting violations of the anti-harassment policy or for providing information for the investigation. This is critical. A claim of retaliation can be as damaging as the claim of harassment itself.

Corrective Action

While it's important to adopt a zero-tolerance policy, it is also important to emphasize that such a policy does not necessarily mean automatic termination of employment. Depending upon the severity of the offense, once confirmed and substantiated, alternatives could include a program of coaching and counseling, providing documented verbal or written warning, mandatory training under a special supervised program, temporary suspension of duties or other penalties shot of termination. Finally, of course, termination should remain an option for the severe case.

The Bottom Line

All employers should take sexual harassment in the workplace very seriously. Assure all employees that it is a serious matter on the company's agenda. Encourage everyone in the workplace to report even the smallest incident. Be sure all employees understand there are multiple avenues in the organization by which to lodge a complaint and that a prompt, thorough and fair investigation will follow together with appropriate corrective action. Underscore that retaliation is never an option.

Despite all of the attention being paid to sexual harassment in the workplace, the law has really not changed much in this area. What has changed is that both traditional and social media have shone a spotlight on the issue as never before. Victims are more empowered to come forward with their complaints. Recent events have shown that even decades-old conduct is coming to light. It may not involve legal liability due to statutes of limitations or fading memories of potential corroborating witnesses, but the media attention can have severe consequences for the station's reputation, viewer or listener reaction and its ability to attract quality employees.

Surveys of various industries disclose that a high percentage of women report receiving or seeing unwelcome e-mail, text or other communications of a personal or sexual nature at work and that they have been present when comments or jokes of the sexual nature were made. Many also report bullying behavior.

Employers can no longer tolerate, condone or ignore behavior that violates company anti-harassment policies. Be certain all station personnel understand that if they are aware of any behavior that violates company policy against sexual harassment they are encouraged, and even have a duty, to report it to management. And make certain there is a safe and secure avenue for that report!

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.