Curbing ‘Locker Room Talk’ in the Workplace

If Donald Trump’s so-called “locker room talk” took place in the confines of a New Jersey business, it could lead to liability. Sexually suggestive comments, inappropriate touching, and sexual innuendos could all be construed as sexual harassment.

Sexual harassment is the subject of more than 20 percent of the enforcement actions pursued by the Equal Employment Opportunity Commission (EEOC) every year. Not all bad behavior is actionable. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature rise to the level of sexual harassment when the conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

Because employers can be held liable for sexual harassment committed by their workers, it is imperative that New Jersey businesses take steps to prevent it. Educating employees about sexual harassment is a good first step, and Trump’s remarks can be a good starting point for the conversation. Whether workers support his presidency or not, most agree that his remarks were inappropriate and should not be accepted in the workplace. However, since there is no bright line rule for what constitutes sexual harassment, it can be helpful to discuss what types of less egregious behavior will still not be tolerated.

Many victims of sexual harassment are afraid to speak up. Therefore, it is imperative that employers have several avenues for reporting complaints. Since some workers may feel uncomfortable talking to their direct supervisor (or the manager may even be the alleged harasser), anonymous reporting is a good idea. It is also imperative to make it clear that that retaliation for making sexual harassment complaints will not be tolerated.

Employers must also train supervisors and managers to spot and address harassment. For instance, when does a crude remark warrant discipline? Employers may be held liable for the bad behavior of their employers if they knew about the improper conduct and failed to take steps to address it. Therefore, New Jersey employers must take immediate action, i.e. launch an investigation, when an employee complains.

As with other workplace issues, it is not effective to simply have policies and procedures in place. Businesses must make it clear to employees that they take sexual harassment seriously, which starts at the top. When a top executive shares a sexually suggestive email with staff members, it sends the message that this type of conduct is acceptable. At the same time, when the company’s top leaders model professional and respectful behavior it helps foster a positive work culture where sexual harassment is not tolerated.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck. He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

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