Ever since the news about Harvey Weinstein exploded into our daily lives, and the seeming unending cascade of similar charges from all corners of the entertainment industry, I have wanted to write a column about the law of the situation. This is not that column.
(Although if you want to talk about why I think Havey’s behavior will bankrupt the Weinstein Company, feel free to email me.)
Nope, this column was inspired by an email I was copied on by one of my clients named John (not his real name). John was emailing the leadership of a client of his (ABC Company—also not a real name) about the boorish behavior of some of the employees at ABC to John on a couple of visits he had made recently to ABC. Although not Weinstein-level of boorish behavior, a few ABC employees engaged in behavior that were John an employee of ABC could be sexual harassment. John was letting ABC know that such behavior would not be tolerated. The email also was something of a CYA email to keep contemporaneous notes of events.
John is a smart and confident fellow. He knows he did not do anything wrong and he is pretty safe and professional in all his dealings. But it got John thinking, what if it had not been John at ABC’s offices and happened to be a member of John’s staff? What would be John’s potential liability if he failed to address claims of harassment of one of his employee’s by a non-employee? All good questions.
Like all service business, graphic designers rely on their clients for income. We build relationships with clients, often personal relationships if the client is a long-term client. If you own an agency with multiple employees, it is not uncommon for owners to send employees to client sites, client meetings, even industry events, often alone. Clients are the lifeblood of any business, and often we might be tempted to overlook behavior that we wouldn’t tolerate from one of our employees when done by a client or client representative. Don’t be tempted to follow this kind of policy.
Time for a quick reminder about sexual harassment law. Sexual harassment can take two forms, quid pro quo or hostile work environment. Quid pro quo is often thought of as the exchange of sexual favors for positive work actions (promotion, pay raise, etc.) or to avoid negative work actions (“sleep with me, or I will fire you.”). Hostile work environment, however, is a bit trickier. When unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment, it is sexual harassment. We often think that harassment can only be done by supervisors or co-workers. But it can be committed by non-employees, and if it affects an employee’s work environment, it is sexual harassment.
Remember, sexual harassment is not limited to behavior of men to women or even women to men. Sexual harassment can also be male to male or female to female, and let us not forget the permutations of transgendered individuals. By the way, our hero John is a gay black man. His harassers included three women and a man, none of whom are aware of his sexual orientation. Gender and orientation of the harasser and the victim are irrelevant in sexual harassment scenario.
An employer who does not take harassment by a non-employee, such as client personnel, seriously can still be held liable for hostile work environment sexual harassment.
Back to John and what employers should be doing. First and foremost, all employers should have a anti-sexual harassment policy as part of its employee manual. The anti-harassment policy should specifically say that employee won’t be subject to harassment by clients or client personnel. Then the policy should make clear a reporting procedure. Employers should actively encourage employees to report harassing behavior by clients. Employers should regularly conduct anti-harassment training, reiterating the reporting policy.
Once a company receives a complaint, treat it with the seriousness it deserves. Investigate the incident, get details from your employee. Investigate the claim like all sexual harassment claims, call in outside counsel if necessary. Get the facts and do so promptly.
“But Matt,” you say, “I can’t control what a client does.”
True, but you can control your response. As the employer, you do have to take action. You have to protect your employees.
You can have someone accompany your harassed employee to the client if the harassed employee is comfortable with that action. However, make it clear that there are zero consequences if the employee is uncomfortable going back to the client—most importantly you have to mean zero consequences.
Go to the client leadership yourself. Address the matter directly and don’t dance around the subject. Often client leadership might be unaware of the behavior, so don’t assume they know (unless they are the harasser of course). Don’t accept the blow-off that “It was just a joke.” It is not a joke.
If you can’t resolve the matter, or the behavior continues. Fire the client. Cold turkey. Even if it means you lose some money, a good client, or even a personal relationship. If you continue to put an employee in the position of being harassed, you are liable for hostile environment sexual harassment, and if found liable by a court, you could be out of business. Is any client worth the death of your business?
Oh, and one more thing. Don’t even think about firing the employee for reporting harassment. Firing the reporting employee is also a quick ticket to a lawsuit and your desire to keep a good client is a sure loser of a defense.
I sincerely hope you are never in a position of having an employee sexually harassed by a client. But if you are, treat it no differently than if one of your other employees harassed a co-worker. Investigate, discipline, and follow up.
MATT JOHNSTON IS A SOLO ATTORNEY WITH A FOCUS ON SMALL BUSINESS REPRESENTATION, COPYRIGHT AND TRADEMARK LAW, AND DISPUTE RESOLUTION. MANY OF MATT’S CLIENTS ARE DESIGNERS AND CREATIVE PROFESSIONALS WHOSE CONCERNS OVERLAPPING MATT’S PRACTICE AREAS. MATT CONCENTRATES ON DRAFTING CLEAR CONTRACTS OF ALL TYPES AND HELPING DESIGNERS WITH THE LEGAL SIDE OF THE DESIGN BUSINESS. AS A BENEFIT TO AIGA MEMBERS, MATT OFFERS A 10% DISCOUNT ON ALL CONSULTATION APPOINTMENTS, FLAT FEE PROJECTS, AND HOURLY FEES.
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