Donald Trump’s Comments and Sexual Harassment Law 11:44, August 5, 2016

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Donald Trump’s Comments and Sexual Harassment Law

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When asked to imagine his daughter, Ivanka Trump, being treated in the workplace like Roger Ailes allegedly treated women (i.e. sexual harassment), Republican Presidential Nominee Donald Trump told USA Today: “I would like to think [Ivanka] would find another career or find another company if that was the case.” Par for course, Trump’s comment spawned controversy.

As reported by USA Today, Gretchen Carlson, the former Fox News personality who lodged sexual harassment allegations against Roger Ailes, lamented the comments as “victim blaming women” while The New Yorker charged that “a hostile atmosphere is something that Donald Trump doesn’t seem to mind.” Ivanka Trump clarified that sexual harassment is inexcusable and should be reported.

From a legal perspective, the law requires employers to prevent and remedy sexual harassment when they become aware, or should know, of it. Employers must quickly address it using reasonable measures. The rub is what’s reasonable, a murky standard. The National Park Service sexual harassment scandal illustrates institutional failure to prevent and remedy it. Legally, however, there is no “right way” to address sexual harassment in the workplace.

When asked to follow up about his comments, The Washington Post reports that Trump clarified: “There may be a better alternative, then there may not. If there’s not a better alternative, then you stay. But it could be there’s a better alternative where you’re taken care of better. But some people don’t like staying in an atmosphere that was so hostile.”

This misses the point. Sexual harassment is “alive and well” and still a big problem in the private sector. For example, data collected by the Equal Employment Opportunity Commission (EEOC) shows that reporting harassment is the least common response, and studies assert that 70% of individuals who experience harassment never report it. Employees are often afraid of retaliation, even when employers have policies in place, and unfortunately feel they have no choice but to leave hostile work environments.

While the law doesn’t require employers to address sexual harassment they don’t know about, accepting a “hostile” work environment is not the answer. Employers must do more to prevent bias and sex discrimination (of which sexual harassment is one form). Airbnb’s anti-discrimination and anti-bias efforts are one example of a company going “beyond the public and legal calculus” to prevent sexual harassment from coming up in the first place. It’s an ethical choice that puts employees and culture first, which can benefit workplaces when combined with traditional compliance efforts.

If you’re unsure about how to prevent sexual harassment and discrimination in the workplace, this case study on Namely, an HR-compliance startup that combined growth and culture with training, provides an inside look.

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Douglas Kelly
Douglas Kelly is EverFi's lead legal editor. He writes on corporate compliance and culture, analyzing new case law, legislation and regulations affecting US companies. Before joining EverFi, he litigated federal and state employment cases and wrote about legal trends. He earned his JD from Berkeley Law and BBA from Emory University.

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