Are You Ready if a Sexual Harassment Scandal Hits Your Business? - Part II

By Michael Dee and Megan Moritz

Does your business have a handle on its policy enforcement?

As outlined in our earlier post, charges of sexual harassment have always posed the potential for very serious liability.  Historically, however, sexual harassment has been relatively difficult to prove from the legal perspective. That tide is turning, however, as technology and social media have armed victims with a much more effective medium for their voices to be heard:  voicing concerns in the court of public opinion before heading to a court of law.

This movement is not limited to the arena of celebrities and politicians.  Is your business ready to respond appropriately?  What if the allegations are against your CEO or other critical managers?  Are you prepared to properly address such complaints and protect your business?  

Given the spotlight being shined on these issues, and the importance of ensuring a safe work environment free from unlawful discrimination, we have prepared a series of blog posts focused on relevant considerations for employers.  Our first post focused on the basics of required anti-harassment policies and reporting procedures.  This is the second post of our series, which addresses implementing actual practices that comply with those policies and procedures.

As we previously discussed, employers must have a current, compliant harassment policy.  So then what do you do with this policy? 

• Effectively communicate the policy. Employees must know not only that the policy exists, but also how it operates. Employees should be given the opportunity to ask questions.  Periodic refreshers should be circulated, and a copy of the company’s anti-harassment policies should be re-distributed from time to time.

• Ongoing education and training on the policy.  As a corollary to the importance of effectively communicating the policy, we must underscore the importance of conducting recurring workplace training on EEO policies.  We recommend conducting training at least annually. Ideally, training would be conducted for all employees, as well as training geared specifically to supervisors (especially to help them identify potential red flags and how to properly handle complaints). We are beginning to see more C-Suite executives and board members seek out training opportunities; we believe this practice is not only wise, but particularly effective as conveying a consistent message about an organization’s commitment to equal employment opportunities. To best protect your business, the training should be live and interactive, rather than, for example, taking on-line training that involves reading instructional information and answering questions thereafter.  The training element goes hand-in-hand with maintaining a current, compliant harassment policy. 

• Consistent enforcement.  The policy absolutely must be enforced, and it must be enforced consistently. Internal processes should be streamlined to ensure all complaints are addressed promptly. If an employee reports improper conduct in the workplace, employers must be committed to conducting a proper investigation by a trained investigator, and taking appropriate corrective action, up to and including termination of the perpetrator’s employment (even if it is the CEO).

• No retaliation.   Employees who make or participate in making good faith complaints or who cooperate with an internal investigation must be protected from retaliation.  These assurances should not only be relayed directly in the policy, but also repeated to employees real-time when they are actually engaged in protected activity.  For example, if an employee raises an internal concern, the supervisor receiving the information should reiterate the company’s anti-retaliation policy, and encourage the employee to report any potential retaliation.  Anti-retaliation reminders should be given, for example, when conducting witness interviews during an investigation, when carrying out disciplinary measures to correct an identified issue, and when following up with a victim after an investigation and corrective measures have been taken.  Employees should be regularly encouraged to come forward with concerns about potential retaliation, and employers should continue monitoring the workplace to help protect against possible retaliation.

Employers need to put themselves in the best position to respond to sexual harassment and other misconduct as quickly and effectively as possible. 

Are You Ready if a Sexual Harassment Scandal Hits Your Business?

By Michael Dee and Megan Moritz

Does your business have the basics covered?

For the past several months, we have been inundated with daily news about entertainers, media personalities, and politicians being accused of sexual harassment and worse. 

Victims of such conduct are no longer remaining silent – and rightfully so.  The era of responding to an employee’s allegation of sexual misconduct by a supervisor or coworker with “Oh, that’s just Charlie being Charlie,” are over (as an executive producer at CBS reportedly said in response to an employee’s complaints about Charlie Rose).

 

Charges of sexual harassment have always posed the potential for very serious liability.  Although sexual harassment historically has been difficult to prove from the legal perspective, technology and social media have armed victims with new outlets for their voices to be heard:  more and more women and men are voicing their concerns in the court of public opinion before heading to a court of law.

This movement is not limited to the arena of celebrities and politicians. Allegations of past and current misconduct in all workplaces is trending up. Does your business have the necessary policies and procedures in place to discourage such misconduct? Is your business ready to respond appropriately to internal or external allegations of harassment?  What if the allegations are against your CEO or other critical managers?  Are you prepared to properly address such complaints and protect your business?

  

Given the spotlight being shined on these issues, and the importance of ensuring a safe work environment free from unlawful discrimination, we have prepared a series of three blog posts focused on relevant considerations for employers.  This is the first post of that series, focused on the basics of required anti-harassment policies and reporting procedures.  The second post will address implementing actual practices that comply with these policies and procedures.  The third post will shift the focus to responding when issues come to light, and dealing with an investigation. 

Do you have a current, legally compliant harassment policy in place, and has it been communicated to all employees and managers?  If not, get one in place immediately!  Additionally:

• Policies should be clearly worded, and should explain the kinds of prohibited conduct.
• Ensure the policy has been disseminated to everyone and that everyone in the workplace knows it exists, and knows who to contact with workplace concerns. 
• Because federal and state law, as well as EEOC guidance, are ever-evolving, policies should be periodically reviewed and updated by someone who keeps up with these changes. 
• The policies should be redistributed periodically, and employers should also provide regular refreshers and training (at least annually).
• Keep in mind policies prohibiting harassment should apply to everyone in the workplace – including top management, coworkers, vendors, customers, and others.
• Compliant policies also need to incorporate required anti-retaliation provisions.

Does your policy incorporate a proper complaint-reporting mechanism?

• The procedures spelled out in the policy for how an employee may report alleged misconduct are every bit as important as the policies prohibiting such conduct. 
•  It is critical to have in place alternative avenues for a victim to report misconduct so that he or she feels comfortable making the report (i.e., is not forced to file a complaint directly with the alleged harasser).
•  While employers may offer a complaint-reporting form, employers cannot require employees to make complaints in writing.  (This underscores the importance of training to ensure supervisors understand how to identify red flags, and what to do in response.) Nevertheless, it is a good practice to make such forms available as an option for reporting misconduct, in which case the forms need to be regularly reviewed and revised to remain compliant with current law. 

In the current environment of heightened awareness and social media that allows even one allegation of misconduct to take on a life of its own, you need to put yourself in the best position possible to respond quickly and appropriately.  BrownWinick has the personnel to help, but whoever you might consult, now is the time to ensure you have the policies and procedures in place to best protect your company.