Are you obligated to report sexual harassment at work?
Posted May 3, 2018 4:06 p.m. EDT
NEW YORK (CNNMoney) — Managers at CBS were warned over a period of 30 years about three sexual misconduct allegations against Charlie Rose, according to a report from the Washington Post.
But if supervisors were aware, what should have been done? What obligation do employees have to report sexual harassment in the workplace?
There is no federal law that requires victims, confidants or witnesses to report instances of harassment on the job. That doesn't mean they shouldn't, of course.
Supervisors are another matter. Courts have ruled that once someone in a supervisory role is alerted to allegations, the company is obligated to take steps to promptly end the harassment.
"If you are a supervisor, you have to report it," said Alexander Cabeceiras, a managing partner and sexual harassment and employment lawyer at Derek Smith Law Group. "But if you are a co-worker, absent from any company policy, you aren't under any obligation to do much of anything, at least legally."
By telling someone in a supervisory role about the inappropriate behavior, the impetus is now on the company to rectify the situation. Supervisors should not agree to keep the employee's secret or confidence, said Kristin Alden, an employment attorney in Washington, DC.
"In some cases, the employer's liability on sexual harassment isn't triggered until it is made aware of it and fails to take action," she said. However, if the harasser is a supervisor, the employer may be liable regardless.
Companies are also not legally required to have a sexual harassment policy.
But most companies do. More than 90% of human resources professionals say their organizations have sexual harassment policies, according to a survey by the Society for Human Resource Management conducted early this year.
Having a clear sexual harassment policy protects the company and its workers.
Companies can defend against claims of sexual harassment by supervisors if they can show they took reasonable action to prevent and quickly fix any improper behaviors and that the employee did not take advantage of outlined reporting procedures.
"An employer can escape liability if it has a procedure and policy in place for sexual harassment and if the employee didn't reasonably avail themselves of that policy," said Cabeceiras.
The Washington Post report claims that a female employee told a CBS producer about a kissing incident with Rose, but didn't want the producer to tell the human resources department. The producer obliged, according to the article. Rose has denied the allegations against him.
A CBS News spokeswoman said in a statement to the Post that the producer's actions were "within the scope of CBS policy at the time" and that the "employee in question was satisfied with the result." The spokeswoman also said that it revised its policy in 2016 to require supervisors to "promptly report" harassment complaints to the human resources department or a compliance officer, the article said.
CBS did not respond to CNNMoney's requests for further comment.
CBS News President David Rhodes sent an email to staffers following the Washington Post report. The text of the email was obtained by CNN. In it he said how the network responds to complaints about sexual harassment has been a "significant focus" for the network this year.
Many employers have reviewed and beefed up their policies in the wake of the #MeToo movement.
"In the last six months, we are seeing companies change their viewpoint of putting it all on supervisors or the victim to come forward," said Sharon Sellers, president of SLS Consulting, a company that does training on workplace sexual harassment. "In our training, we have changed it to staying silent is consent; if you see something inappropriate you need to come forward."
Some companies have mandatory reporting as policy, meaning any employee is obligated to come forward if they see or become aware of a harassment allegation.
While a mandatory reporting policy can convey to workers that a company takes the protection and health of its workers seriously, it can make victims more hesitant to speak up.
Although it is illegal to retaliate against someone who has reported alleged sexual harassment, it's "very common," said Cabeceiras. "We see employees retaliated for reporting sexual harassment on a daily basis - there is a real fear."
If a company does implement mandatory reporting, attorneys emphasized the policies should also include very specific "no retaliation" language.
"Make sure there are multiple ways for the employee to come forward," said Sellers."And talk about the importance of ensuring retaliation doesn't occur."