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Three Tips to Prevent and Respond to Sexual Harassment in the Retail Workplace

BY Nestor Barrero

The headlines abound in these #MeToo movement days about sexual harassment, assault and other bad behavior in the workplace. The retail sector has not been immune from the attention that is being paid to these claims, and the importance of prompt and fair action remains extremely important. Moreover, the retail workforce includes what are often young, inexperienced and transitory employees. This, in addition with close working spaces and blending of work with outside friendships, can create a volatile mix that can be costly for retailers if not handled appropriately

The following are three recommendations for retail employers interested in preventing and adequately responding to sexual harassment in their stores.

1. An Effective Anti-Harassment Policy
Key among the steps to address sexual harassment is an effective anti-harassment policy, which must define what conduct is prohibited and provide adequate procedures for reporting it to management.

Harassment is generally defined as offensive, unwelcome behavior based on race, color, religion, gender (including pregnancy), sexual orientation, national origin, age (40 years or older), disability, genetic information, and any other classification protected by law, which is either made a condition of continued employment (“economic”) or is severe or pervasive enough to create a hostile workplace (“environmental”).

Employees should be strongly encouraged to report all concerns of harassment to a company representative. Managers must be required to report all harassment issues, which are usually reported to human resources at larger retailers, while in smaller settings, an administrator who has received training on appropriately responding to harassment complaints.

A good policy should identify a primary person (or department) to whom reports of harassment can be made, as well as an alternate person to receive reports of harassment when an employee feels uncomfortable going to the primary person. It is also important that the policy clearly explains that anyone can report concerns of harassment—not just the victim. Bystander involvement is becoming a necessary tool for combatting workplace harassment. Because retaliation is illegal, the policy must notify employees that retaliation against any person for reporting or helping deal with a harassment issue will not be tolerated.

2. Effectively Dealing with Powerful Managers
Assuring that employees have an effective means to raise issues, even anonymously, becomes more significant when the harasser is a manager or important executive. It should go without saying that a level of trust must exist that the retailer will do the right thing for all employees at all levels of the organization. If there are rumors, social media tweets or store gossip that suggests inappropriate behavior is occurring, it is important for a company to investigate and determine what is really going on.

Sometimes, new or immature managers who are suddenly in positions of relative power, inappropriately use their roles to engage in serial relationships with subordinates who depend on them for assignment of hours, raises, promotions and the like. Retailers have been burned in lawsuits alleging that a particular store or regional manager’s behavior was known and not addressed because their store or region was seen as profitable. Ignoring “open secrets” can discourage others from reporting, which will only lead to further problems. Tolerating such an individual is a compounding liability risk. It also sends a message to employees that harassment in the workplace is, in fact, tolerated by the company if the harasser is considered more important to the company than the victim.

The #MeToo movement has demonstrated that “open secrets” only get worse, making the situation even more challenging when they finally surface. The only way to combat harassment in such an environment is to stand up to powerful executives and to communicate a powerful message of cultural change that starts with the company’s leadership.

3. Promoting the Business Case for Addressing Harassment
Sexual harassment can affect a business’s bottom line and is also a violation of law. The cost of judgments, settlements and attorney’s fees incurred in litigation, as well as through decreased productivity attributable to low morale, are well documented. Victims and witnesses of harassment are more likely to suffer from stress and psychological consequences than others, and they are more prone to sick time and workplace disengagement. Million-dollar harassment verdicts and settlements are not uncommon, and juries may be encouraged by the #MeToo movement to punish wrongdoers and their employers monetarily. Jury verdicts and settlements do not include the cost of legal defense or other indirect losses arising from company representatives’ time spent meeting with lawyers, giving depositions or performing other tasks focused on litigation, instead of their regular job duties.

A recent development that has raised the stakes for retail employers is that confidentiality and non-disclosure agreements are becoming more difficult to use and enforce. State legislatures and advocacy groups are increasingly attacking their use as enabling harassers to continue their behavior with other victims or permitting companies to sue for speaking out in violation of these clauses. Retailers can no longer assume that the facts of a particular harassment case will never become public simply by passage of time or payment of large settlements.

Wrapping Up
Retailers need to take a broad approach to preventing harassment. In addition to an effective anti-harassment policy and reporting process for receiving complaints, your leadership needs to model correct behavior. Corporate culture starts in the C-Suite. Management needs to believe that harassment and retaliation are unacceptable in their workplaces.

Managers also should take specific efforts to become aware of the behavior that occurs in their stores, kiosks, warehouses and other environments. This can be accomplished through employee satisfaction surveys allowing employees to raise concerns. It is not enough to just conduct traditional harassment training. Training should also include discussions of workplace norms and bystander intervention. Store managers need to understand what to do if they see inappropriate conduct or receive a complaint.

Retailers need to hold managers accountable for promoting a professional environment and reporting complaints to end to bad behavior. Managers also need to understand that, while addressing harassment in their workplaces is an important performance metric, they could also be disciplined or even personally liable if they fail to uphold company values. The #MeToo movement does not show any signs of abating and if anything, industries beyond entertainment and technology will continue to be in the spotlight. Don’t let it be your store.

Nestor Barrero is senior counsel in the Los Angeles office of Constangy, Brooks, Smith & Prophete, LLP, where he advises large and medium sized employers, including retailers, on all aspects of labor and employment law including compliance with anti-harassment, discrimination, privacy and workplace laws. His past and current retail clients have included Nordstrom, Macy’s, Universal CityWalk, Toys R Us and Gymboree. He may be reached at [email protected]

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