Sexual Harassment In the Age of #METOO

If you are the CEO or General Counsel of your company, you should be preparing for a new challenge. The gaining momentum of the #metoo movement means there will likely be an increase in sexual harassment complaints. Raghu and Suriani certainly think it's already happening (#METOOWHATNEXT: Strengthening workplace sexual harassment protection and accountability, nwlc.org, 2017.), and our clients are certainly calling us more often to investigate claims. To better prepare, here are some suggestions we urge you to consider.

Have a Policy- and Training to Go With It

Some people complain that, e.g. training and written policies do little practical good and even the EEOC has reservations about the effectiveness of training. (Does sexual harassment training work? Natour, Time 2017.) Based on our 30+ years of experience we believe policy and training is still a good idea, period. If training and policy curb any offense-even one-then it is worthwhile. Good policy let's employees know you-as an organization-value the right behavior, it puts potential harassers on notice and also educates employees in general about what might be seen as harassment. Finally, policies are advisable because the EEOC strongly recommends them as a necessary defense. (Promising practices for preventing harassment, EEOC.) These policies should not be too theoretical; have some practical "if this happens then this will be the result" statements.

If a Complaint is Filed Make Sure People Take it Seriously

No one should hope to stand behind "he said/ she said" in 2018. Surprisingly, some managers still think that any investigation of sexual harassment will stall if it comes down to "he said she said" in the absence of witnesses. In our experience, this is rarely the case. (see Sexual harassment and he said she said, Rose and Porterfield, Jurispro, 2015; EEO Guidance on vicarious employer liability, EEOC,1999.)

In the same way, the defense, "That's just good old Bill" won't work either. We urge people in our public talks and articles (Bullying in the workplace, Porterfield and Rose, Experts.com, 2017) and in face to face meetings, to not excuse bad behavior regardless of who engages in it. The all too common "he doesn't mean any harm" argument was flawed in 1997 and it's flawed now. And in any case, according to the organization HR Resolutions, impact matters more than intent. "Most importantly, whether or not the behavior is 'unwelcoming' is decided by the recipient of the behavior NOT the initiator. Supervisors must value impact over intent when deciding how to address the situation." (Sexual Harassment Law part 2, hrresolutions.com, February 2012.)

Investigate Thoroughly and Don't Rely on HR Alone - Top Management Must Get Behind It

Some people see HR as having no interest and/or power to do anything about bad managers. Others see HR as a department that will ultimately side with Corporate, right or wrong. (I reported my awful manager to HR, Green, Ask a Manager, 2014; Why employees don't go to HR, Wade, Execupundit.com, 2009.)

In many companies HR may well have the power and autonomy to do any investigation and recommend action; but, rightly or wrongly, many employees doubt that. Top management need to play a vital, active, and committed role.

Protect the Person Who Brought the Charges Forward

If any sort of negative result comes to the person making an accusation you've done worse damage than not investigating at all. Besides the fact that that's clearly not fair, legal or moral, it also gives the wrong message to anyone else who might have been harassed: and the message is 'don't complain.' Many people fear retaliation, and often rightly so. In Golshan's article (Study finds 75 percent of workplace harassment victims experienced retaliation when they spoke up VOX, 2017) the title speaks for itself. No policy, training, or seemingly fair investigation will do much good if people are afraid to complain.

Be Fair to the Person Being Investigated

Some employers "play it safe" by simply firing the accused person without even looking into the allegations (Klingshirn, Sexual harassment and the rights of the accused, myemploymentlawyer.com.) Of course, no one would see that as fair. In addition, if you check with legal counsel you may find that-even from a purely legal point of view-this is not always the right approach because it may lead to your being sued. Klingshirn for example goes on to discuss MacKenzie vs. Miller Brewing, 2001, in which the court found the accused was terminated based on charges that were not serious enough.

Finally, once you investigate, take action on the results

You need to do something if sexual harassment is indeed found. This may mean firing the harasser-even if he or she didn't know they were acting outside of policy. Sexual harassment training as a prevention is one thing and may be appropriate after the fact if the behavior was borderline - but if an adult doesn't know-without training-that it is wrong to sexually harass, that is a judgment problem in and of itself. No policy can cover every possible behavior; if obvious harassment is not clear to the individual that person may be beyond training.

In Conclusion

The previously cited article by Golshan indicates that, not surprisingly, women are more likely to speak up if others have - and in 2018 women are now speaking up in large numbers. As harassed people are encouraged to come forward, it's good for business and society in general. On a practical level the likelihood of increased complaints means proactive planning can help avoid problems and prepare organizations to recognize how to deal with the consequences if and when those allegations occur.

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