DON’T GET CAUGHT WITH YOUR PANTS DOWN AMIDST THE #METOO MOVEMENT
Without a doubt sexual harassment has always been a serious issue for employers. Given the recent headlines relating to celebrities such as Harvey Weinstein, Kevin Spacey, Bill O’Reilly, and others, sexual harassment is now front and center in the consciousness of the American public in ways that it was not just a short time ago. After the Harvey Weinstein scandal hit the news, Actress Alyssa Milano took to Twitter and posted the following tweet: “If all the women who have been sexually harassed or assaulted wrote ‘Me too’ as a status we might give people a sense of the magnitude of the problem.” Her tweet caught fire and “#metoo” peppers all vehicles of social media. In fact, CBS News reported that more than 45% of U.S. Facebook users had friends who posted #metoo.
It should be no surprise that as victims begin to feel empowered to talk candidly and publically about sexual harassment in the workplace by the #metoo movement employers will likely begin to see more sexual harassment claims reported. In 1991, after Anita Hill made claims that Clarence Thomas sexually harassed her in the workplace, there was an uptick in reporting such claims to the EEOC by as much as 40%. We can expect no different from this latest waive of public claims of harassment and assault.
So what is an employer to do to guard its employees against sexual harassment and protect itself against liability for the anticipated increase in sexual harassment claims?
- Have a policy against harassment in the workplace which clearly identifies how an employee can make a complaint if he or she experiences or witnesses sexual harassment. If it has been a while since you updated your policies, dust them off, and look at them again. Make sure they are not only legally sufficient, but also user friendly to your employees — do not make it complicated to file reports of harassment.
- Train and re-train your staff and your managers, and make periodic training mandatory. Impress upon your employees how seriously your business will take reports of sexual harassment. Remind managers that they could face individual liability for such claims and should report any suspected claims immediately.
- At a minimum, training should include an explanation of what harassment is, what to do if the harasser is a supervisor, what the policy is, how to report harassment, how the investigative process will work, the obligation of witnesses to harassment to report it, and the protection afforded by the employer to those who report wrongdoing or participate in investigations in good-faith from retaliation of any kind.
- Remind employees that the employer will also address complaints relating to harassment by clients, vendors, customers, and/or other third parties who harass its employees while they are performing their work.
- Train your investigators how to conduct thorough, impartial, and fair investigations, and recognize that sometimes to meet these objectives a third-party investigator might be preferred over someone in-house.
- Consider your corporate culture, and do a risk assessment. Be certain that your culture does not dissuade (either intentionally or unintentionally) reports of harassment.
- Conduct exit interviews with employees to give departing employees a chance to tell you about their experiences and possibly identify a problem which would otherwise have gone unknown.
- If you receive a report that a current employee has utilized the #metoo movement and posted to social media about experiences which have clearly occurred in your workplace, address the posting with the employee, and inform the employee that the complaint process is available. And, if the circumstances warrant it, open an investigation. If a post is ambiguous, but reported, you should consider simply checking in with the employee to see if all is “ok” in the workplace, and document your discussion.
Being vigilant and diligent when it comes to sexual harassment training and investigations is a no-brainer, and you likely already have the above-referenced mechanisms in place for educating and protecting your workforce. If you don’t, however, there is no time like the present to get your proverbial house in order.