This piece is presented by Woods, Fuller, Shultz & Smith PC.

By Heather R. Springer, employment law attorney

The topic of sexual harassment is everywhere right now. This increased focus began far from South Dakota, but those allegations opened a national floodgate which spawned the #metoo movement with people sharing their own stories.

Allegations of sexual harassment and assault have since poured out from men and women, not only in the industries of Hollywood, but also in sports, politics, the judicial system, the media and corporate America.

Indeed, more than 40 sexual misconduct scandals involving high-profile men have been made public since October, and most of these men either have resigned or been fired in the wake of these allegations.

This national spotlight on sexual harassment has raised the awareness of all employers, including those in South Dakota. In the recent case of Laura Zylstra Kaiser vs. Bryan Gortmaker, director of the South Dakota Division of Criminal Investigation, the jury awarded Kaiser over $1.2 million on her gender discrimination and retaliation claims.

What does this mean for employers? As the #metoo movement grows and enables people to feel more comfortable raising concerns, will this widespread awakening result in increased litigation by complainants and a higher level of duty placed upon managers? It certainly is possible that it will. Victims of sexual harassment already have begun bringing lawsuits in the wake of some of these scandals, and there is a demand for new and increasing accountability for both perpetrators and employers alike.

In light of these events, employers would be wise to review whether and how they are protecting their employees from sexual harassment while also providing some degree of due process for the accused. The following are a few guidelines employers should follow to ensure that they are prepared for allegations within their own workplaces:

1. Examine your culture

As an employer, it is vital to consistently monitor your workplace and communicate with employees, including managers, regarding the work environment. By engaging in a proactive approach, you will be able to better identify, prevent and respond to potential or existing issues. It is critical to note that in almost all of the recent scandals, the alleged perpetrator was someone with significant power within the organization. Thus, the key question is not just whether there is a culture of compliance but whether it reaches to the top of the organizational chart: specifically, do regular employees perceive that C-suite or other very important employees have a different set of rules than them?

2. Review your policies

Make sure you have sufficient anti-harassment policies. At a minimum, such policies should prohibit sexual harassment, provide procedures for reporting sexual harassment, identify procedures for investigating complaints, address discipline for policy violations and prohibit retaliation against employees who report sexual harassment in good faith.

The deeper question, however, is whether your policies translate into actual protections for employees. Some employers make significant distinctions between formal and informal complaints, and make the complaint process overly burdensome for employees. In effect, these employers discourage complaints, particularly against top-level employees. Therefore, it is crucial to ensure your employees are protected both through the complaint process and from retaliation, as an employee’s fear often prevents the person from raising concerns about someone with greater clout in the organization.

3. Train your employees

You should provide general training to employees regarding your anti-harassment policies and procedures, and you should encourage employees to report any sexual harassment or misconduct they experience or observe.

4. Train your managers

In general, the actions of managers are attributable to their employers and can give rise to employer liability. Moreover, managers are responsible for both their own actions and the actions of the employees they supervise. Therefore, the importance of training your managers to identify and respond to allegations of sexual harassment cannot be overstated. All managers, especially high- level ones, should be trained routinely on anti-harassment policies and procedures for responding to complaints.

5. Follow your procedures

Upon receipt of a sexual harassment complaint, do not overreact. Given the current climate, some employers feel the need to proceed with immediate termination or other forms of adverse action. Instead, you should follow your normal investigation procedures and fully investigate any complaint before taking adverse action. You should, however, also very carefully protect any employee who files a complaint.

As demonstrated in recent months, no workplace or industry is immune from allegations of sexual harassment or misconduct. For employers, the primary goal is to train employees in order to reduce incidents of sexual harassment or misconduct in the workplace. However, employers still need to be prepared to respond to such allegations if and when they arise. Keeping the foregoing guidelines in mind provides a starting point for employers in preparing for and responding to sexual harassment complaints.

Woods, Fuller, Shultz & Smith PC has the largest team of employment lawyers in the state. We routinely assist employers with training and preparation to reduce the risk of harassment and also how to respond in the event of a complaint. For additional information, contact Heather Springer, [email protected] or visit woodsfuller.com.