Bill O'Reilly. Harvey Weinstein. Kevin Spacey. Charlie Rose. Matt Lauer. It seems that every day the news covers one more explosive incident of sexual harassment in the workplace, with many allegations indicating that the harassment had been occurring for years before action was taken. Companies across the country are wondering: “How do we keep this from happening to us?”
While there is no “silver bullet” to preventing sexual harassment in the workplace, these recent cases demonstrate the importance of creating a culture where employees are aware of the line between acceptable and unacceptable behavior, know how to complain, and most importantly, feel able to speak up without fear of retaliation. In order to do that, employers should create a clear anti-harassment policy, communicate the policy to employees and managers through training, and ensure that the policy is enforced to prevent retaliation and to appropriately address violations.
Anti-Harassment Policy. Every company should have a policy in its Handbook prohibiting harassment and discrimination in the workplace. The policy should provide definitions and examples of prohibited harassment and state that harassment will not be tolerated on the basis of any protected characteristic. Employers should be aware that state and local law often provide greater protection than federal law. The policy should provide a clear procedure for filing a complaint by those who experience or witness harassment. Employers should consider whether all employees, or at least managers, should be required by policy to report harassment. The policy should also clearly state that complaints will be handled as confidentially as possible under the circumstances – but should never guarantee that the identity of the complainant will not be revealed. The policy should also advise employees what do to if they do not feel their complaint was taken seriously or appropriately addressed. The policy should provide information on potential discipline for violations, and be clear that violation of the policy may lead to termination. The policy should also clearly and unequivocally state that employees will not suffer retaliation because they make a complaint under the policy and be clear that retaliation is a separate violation of the policy, also subject to discipline up to and including termination.
Training. Employers should regularly conduct training of their workforce to ensure that employees understand the policy. The best training is not “off the shelf,” but is customized to the workplace based upon type of business, workforce makeup, company culture, and other factors. The best training is conducted in person, and is interactive. For example, our firm regularly uses voting software to provide scenarios and asks employees to “vote” on the right answer. Training must be supported by the highest levels of the organization. It is extremely helpful to have an executive provide opening or closing comments to the training to show that the company takes such matters seriously. Training should provide examples of harassment so employees can see what it might look like in the real world, and to help sensitize them to the consequences of things they may say or do in the workplace. Training should emphasize that the company’s policies are far more stringent than the law – and that conduct that may not be severe enough to support a legal claim is nevertheless a violation of the company’s policy. Supervisors and managers should be provided with separate or additional training on their obligations under the law – including the obligation to report and address harassment they witness. Supervisors must clearly understand that there is no such thing as an “informal” complaint, and that their knowledge of potential violations can lead to liability on the part of the company. Finally, training must clearly emphasize the company’s policy of non-retaliation. Recent cases have all too clearly demonstrated that victims do not come forward out of fear, and this fear should be addressed to ensure that employees understand they can safely report without fear of retaliation.
Investigation/Action. When complaints come in, companies must act quickly and appropriately. An investigation of some sort will need to be conducted. Often, HR can conduct the investigation. However, depending on the seriousness of the complaint or the position of the accused, a company may want to retain outside counsel or a consultant to conduct the investigation. Questions of attorney-client privilege should also be carefully considered – certain steps must be taken if the company may want to protect the investigation as privileged. Decisions also need to be made regarding any interim steps – do the accused and accuser need to be separated? The investigation should start with an in-person meeting with the complainant, even if a written complaint was provided. As many facts as possible should be gathered, including information about witnesses and documents, including emails, that should be reviewed. Every person interviewed should be informed of the company’s policy against retaliation and, as appropriate, warned against retaliating or informed of the process to complain of retaliation. If a violation is found, appropriate action must be taken to be sure that it stops and does not recur. That may involve discipline, or even termination, of the harasser. The end of the investigation does not end the matter, however, because companies should continue to monitor the workplace to be sure retaliation is not occurring.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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