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#MeToo: It May Be Happening in Your Workplace Too
by: Jan E. Hensel, Janay M. Stevens of Dinsmore & Shohl LLP  -  Legal News
Thursday, November 16, 2017

The resurgence of the #MeToo campaign highlights that sexual harassment comes in all variations, affects all classes of people, and cuts across all industries. While employers could dismiss the social media moniker as a “them” not an “us” problem, they do so at their peril. People, some of whom may be your employees, are talking, posting, and tweeting, and employers would be wise to listen and revisit their anti-harassment policies.

How employers handle complaints of harassment, even those as quiet as a whisper, will have a significant impact on their workplaces. The consequences of appropriate employer action or inaction can affect everything from employee morale, workplace dynamics and culture, and outward reputation, to an employer’s bottom line. From fiscal year 2010 through 2016, the United States Equal Employment Opportunity Commission (EEOC) reports it has received approximately 87,683 charges alleging sex-based harassment.[1] That number increases to over 191,000 charges when harassment based on race, color, age, religion, disability, national origin, sexual orientation, sex, gender identity, pregnancy, and genetic information are included in the calculation. Each year, the EEOC, through settlement, conciliation, or litigation, secures millions of dollars in monetary benefits for the employees who file these charges.

Dismissing, discounting, or otherwise ignoring complaints of harassment is not an option for the conscientious employer. Fostering a culture that is inhospitable to harassment will go a long way to limit exposure. What follows are best practices to revisit and revamp your organization’s approach to workplace harassment.

  1. Draft and Implement an Anti-Harassment Policy

Every organization needs a stated policy against harassment. The policy should be written in clear, simple words, in all languages used in the workplace. The policy should make clear that harassment on the basis of any protected characteristic will not be tolerated. A good anti-harassment policy will include:

  • A clear explanation of prohibited conduct, including examples;

  • Assurances that employees who make complaints or who provide information in conjunction with an investigation in good faith will be protected against retaliation;

  • An outline of the process for reporting a complaint, to include more than one avenue of reporting within the company;

  • A statement that the employer will protect the confidentiality of harassment complaints to the extent possible and permitted by law;

  • Assurances that a prompt, thorough and impartial investigation will follow all complaints; and

  • A statement that the employer will take immediate and proportionate corrective action based upon the outcome of the investigation.

The company anti-harassment policy should be communicated to employees frequently, and it is recommended that employers require a signed acknowledgement from each employee, verifying both the receipt and review of the policy. New signed acknowledgements should be obtained upon any roll out of a revised policy.

  1. Reporting Systems for Harassment

All anti-harassment policies should include a multifaceted means by which an individual who has experienced harassment can report the harassment and file a complaint, as well as means by which employees who have observed harassment can report their observations to the employer. An effective reporting system must include options for the means and mode for lodging a complaint with the employer. Options to consider are permitting employees to report their complaints in person, through a company hotline, by telephone, by email, or other electronic communications. Additionally, employees should be permitted to lodge their complaint with their direct supervisor, the human resources manager or department, and other company leadership. Employees should not be required to first confront the accused before lodging the complaint with the employer.

  1. Investigations and Corrective Action

After a report has been made, or the employer otherwise knows or should know about potentially harassing conduct in the workplace, it should take prompt and effective remedial action reasonably calculated to end any harassing behavior. Tips to conduct an effective investigation include the following:

  • Promptly initiate the investigation, document the need for any unavoidable delays, and complete the investigation in a timely manner;

  • Ensure that the person(s) conducting the investigation are well-trained, objective, and neutral;

  • Be thorough. Inquire about the who, what, when, where, extent and scope of the behaviors, the identity of any witnesses, the frequency of the behaviors, and determine whether there any documentation exists, including photographs, text messages, emails, video, instant messenger chat history, etc.;

  • Interview all necessary parties, including the complainant, the accused, and any witnesses;

  • Document all steps taken from the point of first contact, to witness interview notes, and ultimately an investigative report outlining the outcome of the investigation. Take witness statements where appropriate. Reports should be thorough, thoughtfully written, and proofread for errors;

  • Do not promise confidentiality to any interviewee, but explain that you will do your best to keep the details of the investigation confidential;

  • Follow-up with those involved and notify them of the outcome of the investigation and any remedial action to be taken; and

  • Assess what, if anything, went wrong and organize a plan for how the company can prevent a similar incident going forward.

If your investigation reveals that harassment, legally-actionable or otherwise, has occurred, an employer must ensure it takes corrective action with intent to end the behavior. Corrective action may run the gamut of termination to a verbal or written warning or appropriate sensitivity training or counseling. Any discipline that is issued should be documented, prompt, proportional to the seriousness of the offense, and should include a refresher on the company’s anti-harassment policy.

  1. Compliance Training

A harassment policy is nothing without effective compliance training. To be effective, anti-harassment training should be tailored to the workforce and workplace and to different cohorts of employees. Employers should consider the following when conducting anti-harassment training:

  • Having a member(s) of the senior leadership team attend the training session so as to reinforce its importance;

  • Trainings, in various forms and forums, should be conducted and reinforced on a regular basis for all employees;

  • Training should not be limited only to conduct that may be legally-actionable harassment, but should include a broader discussion of inappropriate workplace behaviors;

  • Training should include specific direction to middle-management and first-line supervisors on how to respond effectively to harassment they observe, that is reported to them, or of which they have knowledge or information; and

  • Training materials should be re-evaluated and assessed for efficacy.

  1. Leadership and Accountability at All Levels is a Critical Component

Any anti-harassment policy, no matter how well written, will not be worth the paper it is printed on unless an employer demands a culture that abhors harassment at every level of the organization. At all levels, across all positions, an organization must have systems in place that hold employees accountable to the ideals and processes of its anti-harassment policy and culture. When revisiting their anti-harassment policy, employers should be asking “what is our organizational culture” and “what steps can our leadership team take to ensure that our culture reflects the commitment to an environment free of harassment?”

[1] U.S. Equal Employment Opportunity Commission, Enforcement & Litigation Statistics, Charges Alleging Sex-Based Harassment, Including Charges of Sexual Harassment (FY 2010 – FY 2016), https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm.

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