If you haven’t heard of #MeToo, I can only assume you live under a rock. This viral hashtag has become a rallying point for people denouncing sexual harassment and assault, including everyone from Hollywood stars to your next-door neighbor. All the media attention may lead to ask what you as an employer need to do to prevent sexual harassment at your company. If so, read on!
The Best Offense is a Good Defense
If you want to prevent sexual harassment, you first need to define it. Sexual harassment covers a broad range of behaviors, from off-color jokes to groping, and from indecent exposure to sexual assault. Many companies realize the importance of having a policy prohibiting discrimination and harassment on the basis of sex. However, if you don’t have such a policy, that is the first step you need to take, and there is no time like to present to create one. Put this article down and call your favorite employment lawyer right now.
If you have a policy, take a look at it. Does it helpfully define harassment and discrimination? Does it provide one or more methods to report any complaints, particularly in situations where the harasser may be the boss? Does it prohibit retaliation against people who make a complaint or provide information used to investigate a complaint? Does it provide guidance as to what penalties will result from prohibited behavior?
Next, if you have a practical and legal policy, does your workforce know about it and understand it? As I am so fond of saying, the best policy will not help you if no one knows about it. And not only do I want your employees to know that you prohibit harassment and discrimination, I want you to train them on it. Repeatedly. With different sessions for employees and for management. Are you confident your front-line management knows what to do if someone complains to them about off-color jokes? Does every member of your company understand that repeatedly asking a coworker on a date could cross the line into harassment or a hostile work environment?
Employers sometimes tell me that training is too time consuming or expensive. I understand. And there are always more immediate fires to put out. However, defending a lawsuit is even more time consuming and expensive. You will not regret making the time for training.
Let’s say that you have a great policy and your employees have been thoroughly trained on it. Fantastic. But what happens when Alice comes to you to say that she believes she is being sexually harassed?
When You Get a Complaint
First, take all complaints seriously. As I’ve mentioned in past articles, even a stopped clock is right twice a day. The fact that Alice has complained six times in the past six months doesn’t mean this particular complaint is unfounded.
Second, investigate the complaint in accordance with your consistently applied plan and policy. While creating an investigative plan may sound overwhelming, the importance of being prepared cannot be overstated. A thoughtful framework not only keeps the investigation on track, but it is also a helpful way to protect the company from liability if there is litigation in the future.
As I’ve said before, all investigators should be well trained, detail oriented and objective. Administrative leaders and human resources professionals are typically good investigators, though you may also opt to hire an external consultant or attorney if the situation is particularly serious or involves high-ranking employees. Hopefully it goes without saying that anyone who is accused of improper conduct, who reports to the alleged harasser directly or indirectly, or who is a material fact witness should not conduct the investigation or make the final investigative decision.
Once you have a plan, execute it. Interview the accused and the accuser as well as any witnesses either person identifies. Document everything. Keep in mind that your main objective at this stage is to get all the information that each individual can give you. When asking questions about the alleged events, get as many details as possible regarding who, what, when, where and how. Asking everyone to write and sign a statement is usually a good idea, unless there is a language or literacy barrier. Ask everyone to identify any witnesses or documents that may provide additional information, including personal emails or notes. Keep in mind that we live in a digital age, so text messages or iPhone pictures may be relevant.
In sexual harassment investigations, you should assess whether the accused has any reason to believe the conduct was welcome. For example, the accuser and the accused may have had a long-standing consensual relationship that’s recently gone south. Observe every interviewee’s posture, tone of voice, eye contact and other body language as it may provide valuable insight into the individual’s credibility. If the accused admits to the behavior, you can terminate the investigation and decide the appropriate corrective action to take. If the accused refuses to participate in the investigation, inform him that the company will base its decision on the information gathered during the investigation and the inference it draws from the accused’s refusal to cooperate.
Third, once the interviews are complete and all the documents and physical evidence have been reviewed, you must determine whether the alleged misconduct actually occurred. This stage is often the most challenging for a company, so consulting with legal counsel may be particularly helpful. Keep in mind you don’t necessarily have to conclude that nothing bad happened just because there are no witnesses and the accused denies the allegations. Similarly, the company isn’t required to accept unsubstantiated allegations. The decision-maker should consider the evidence and the witness statements, and may need to make credibility determinations.
Once you have reached a conclusion regarding what happened, you need to decide what action to take. If you determine that misconduct occurred, you must decide what corrective action to take against the accused. In the case of harassment or discrimination, this action must be prompt and reasonably calculated to fix the problem. What corrective action is appropriate depends on a number of factors, including the severity of the conduct, how many incidents were involved, and whether the misconduct represents a pattern. The decision makers should also review all relevant company policies and procedures as well as what actions the company took in similar situations. Remember, consistency is invaluable.
Finally, don’t get mad and don’t get even. Even if an allegation is completely meritless and the company conducted a “textbook” investigation, it can still be liable for retaliation. Thus, take steps to ensure that the accuser isn’t retaliated against for making a complaint by following up with the person for several months to ensure there is no further misconduct or retaliation.
Let me leave you with some practical advice to pass along to your employees. If you want to avoid becoming a cautionary #MeToo tale, follow the rules you learned on the playground:
• Don’t touch other people without permission, which includes but is not limited to kissing, grabbing and licking.
• “No” really does mean no, and silence is not consent.
• Don’t threaten other people to get them to do something they don’t want to do.
• Keep your clothes on and fully fastened at work.
• And if you see someone else being treated badly, tell a responsible adult (i.e. your boss, human resources, an attorney, etc.).
In summary, treat your co-workers the way you would want to be treated and the way you would want your spouse or child to be treated. By keeping these rules in mind, you will be well on your way to avoiding a #MeToo scenario at your company. TR
This column is made available by the lawyer and publisher for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice or to establish an attorney-client relationship. This column should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.