Question: What steps should employers take to prevent sexual harassment in the workplace?

Answer:

There are three key things employers can do: 1) have a strong anti-harassment policy in place to address various forms of harassment; 2) train the workforce on the policy and steps employees and managers should take should they be subject to or learn of potential sexual harassment; and 3) foster a culture of openness so employees feel comfortable bringing such allegations to light.  Given the high-profile allegations of sexual harassment in the news the past few weeks, many employers are taking a closer look at their workplace to ensure they have taken sufficient measures to address potential sexual harassment.

An anti-harassment policy should explain what harassment is, make clear that harassment will not be tolerated, and describe what employees should do if they are subject to or become aware of harassment.  The policy also should include a detailed system for making complaints of harassment, including providing more than one avenue to make the complaint.

Conducting training for all staff also is critical.  Employees should be trained on acceptable conduct in the workplace, the details of the anti-harassment policy, what employees should do if harassment arises, and the potential consequences for engaging in harassment.  In addition, managers should be trained on how to identify potential harassment and what to do if a complaint is brought to them.  Conducting training lets the workforce know that the company take harassment very seriously and that harassment is unwelcome in the workplace.

We have seen from the serious and years’-old allegations coming from Hollywood how detrimental a culture of silence can be.  Employers should strive to have the opposite: a culture of openness where employees know they can come forward with their concerns and that those concerns will be taken seriously.  Whether those concerns are big or small, employers should recognize the benefit of having them reported so they can be promptly investigated and appropriately addressed.

If there is any silver lining to the high-profile allegations of harassment in the spotlight right now, they have given some pause to employers and employees alike.  This has provided a good opportunity for everyone to take stock of their workplaces and to take proactive steps to ensure that the anti-harassment bases are appropriately covered.

About the Author:  Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.

Question: Do company websites need to make accommodations for the disabled?

Answer:

Yes, this is a growing concern for businesses that provide goods or services online.  Under Title III of the Americans with Disabilities Act (ADA), “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.” While the ADA passed before the Internet was made publicly available and “place of public accommodation” traditionally referred to a physical location (such as brick and mortar stores), there has been a surge of lawsuits filed to address alleged website accommodations violations.

These cases have been coined “surf-by” lawsuits because potential plaintiffs need only search the Internet to have a potential claim. You may recall the rash of”drive-by” lawsuits that preceded this new fad in ADA claims, where the plaintiffs need only drive-by stores that do not have ADA accessible ramps or doorways to make an ADA claim.  The plaintiffs in “surf-by” lawsuits often allege that (1) certain features on a website are accessible by keyboard and not just by mouse, which affect the mobility impaired, or (2) photos are not embedded with text that can be read aloud by software, which affect the visually impaired.

The appellate circuit courts currently are split on whether or not websites are considered public accommodations under Title III of the ADA.  CVS Pharmacy Inc. recently was sued in California and lost a motion to dismiss a case, which alleges that CVS’ mobile apps and website violate the ADA because blind users may not be able to access their services.  Some circuits have held that places of accommodation must be physical, brick and mortar sites, while other circuits, including the Seventh Circuit (which covers Illinois, Indiana and Wisconsin), have found that websites should make accommodations for the disabled.

While the ADA limits liability for such claims to injunctive relief and attorneys’ fees, these lawsuits still present significant risks for businesses, including those that provide services connected with any physical location.  Accordingly, it is advisable for businesses to take preventive measures to defend against Title III lawsuits.  This includes consulting with counsel and/or an accessibility consultant to identity, and implement a plan to remediate, any potential violations on company websites.  Until the government issues guidance on how the ADA applies to the Web, courts tend to rely on, and businesses should consult, the Web Content Accessibility Guidelines (WCAG 2.0 AA), which are a set of technical standards that aim to provide a single shared standard for Internet content accessibility.

About the Author:  Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.