What to Do About #MeToo: Anti-Harassment Guidance for Employers
- Now more than ever, employers must proactively assess their policies and training systems to lay the groundwork for appropriate organizational responses to sexual harassment allegations or complaints that arise among employees.
- Companies and organizations will be responsible and held liable if they fail to provide proper means of reporting, investigating and remedying allegations of inappropriate behavior, sexual harassment and other acts of discrimination.
- From a practical and legal compliance standpoint, the first step is to make sure that your organization articulates clear anti-harassment policies and advises employees about what to do if they feel they have experienced or witnessed harassment.
As recent headlines and hashtags (#MeToo) have shown, sexual harassment is a topic of great concern across workplaces, with past cultural attitudes being cast aside in favor of more enlightened approaches to employee treatment. Now more than ever, employers must proactively assess their policies and training systems to lay the groundwork for appropriate organizational responses to allegations or complaints that arise among employees. Any entity – whether a large publicly traded company, a small nonprofit or any organization in between – will be responsible and held liable if it fails to provide proper means of reporting, investigating and remedying allegations of inappropriate behavior, sexual harassment and other acts of discrimination.
- Create a culture of compliance, reporting and remediation, i.e., no one is above the law
- Invest in annual training and discuss results each year
- Managers should know if they see something, they need to do something, i.e., stop inappropriate behavior and let employees know that a report will be made to management
- Employees should know, "If you see something, say something" to a supervisor, the human resources department or another member of leadership
- Persons receiving initial complaints by victims should gather facts only without expressing judgments or opinions
- Consider alternative means of reporting mechanisms, such as hotlines, text message numbers, e-mail, etc.
- Always inform victims about the status of investigations and remediation; also follow up with victims and make sure that no retaliation of any kind is permitted
Policies and Reporting Structure
The first step from a practical and legal compliance standpoint is to make sure that your organization articulates clear anti-harassment policies and advises employees about what to do if they feel they have experienced or witnessed harassment. Employees should be instructed to report suspected harassment to supervisors, human resources or other leadership; they should not be required to follow chains of command. Women and men in the workplace who experience or witness harassment must understand their obligations to their co-workers and the company to report instances of inappropriate or harassing behavior. Managers must be instructed that their reporting obligations are mandatory and not discretionary. Front-line managers must be guided to respond diligently both to direct complaints and to questionable conduct that occurs on their watch. All managers must be advised that they have mandatory reporting obligations under the law. In addition to reporting, managers should be trained to act, i.e., stop inappropriate or harassing conduct and let the employees involved know there will be a report about the incident.
An organization must also have a game plan in place for how to proactively respond to complaints. Human resources or other professionals should be trained in how to appropriately and impartially investigate what may be sensitive subjects, in line with relevant legal standards. Initial investigations should consist of fact gathering only, and should not reveal or rely on subjective opinions regarding the veracity of the claims. Effective investigations make reporting any future allegations of misconduct easier and promote open communication about concerns by instilling in employees confidence in the organization's willingness and ability to address employee concerns fairly.
All employees should be provided with periodic training on how to distinguish between lawful and unlawful workplace conduct. Even though cost may be an issue, consider having the training done by an outside source. Recent headlines show that employers might not always know which employees have behaved poorly or exhibited poor judgment in the past. Outside trainers usually send the message to employees that management is serious about these issues and is committed to maintaining a harassment-free workplace for its employees. Most importantly, during any training, employees must be continually reminded of the various methods available to report inappropriate behavior to management.
Victims should be notified after their complaints of a time frame during which the investigation will take place and likely conclude. Victims should be told of any remediation steps by the company (although they should not be informed of the specifics of any disciplinary action taken) and advised that any ongoing inappropriate conduct or retaliation should also be immediately reported. Employers should follow up with a victim after the investigation and remediation has occurred to make sure that any alleged harassment or misconduct has ended and that the employee feels safe at work.
Management should consult with legal counsel if it is has not recently reviewed its anti-harassment policies or maintained an active practice of training human resources professionals, managers and employees in how to support a professional workplace that demonstrably refuses to tolerate unlawful harassment.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.