4 Tips to Prevent and Respond to Sexual Harassment

Young blonde woman holding up a #MeToo placquard in front of her face
Photo by Mihai Surdu on Unsplash

Over the past weeks, an avalanche of sexual harassment allegations has blanketed the country. Women–and men–feel a new confidence. They’re coming out in droves to denounce sexual harassment and other misconduct experienced in the workplace recently–and not so recently. The sheer number of (mostly) women telling their stories inspired one woman to create a Twitter hashtag, #MeToo. More than 1.7 million people in 85 countries have re-Tweeted the hashtag to speak out and name their harassers.

Ousters and Settlements Increase

Business Management Daily featured a PricewaterhouseCoopers study which revealed that over the past five years, 5.3 percent of chief executive officers have been forcibly removed due to lapses in ethics. That includes harassment. The 36 percent increase is “due in large part to increased public scrutiny and accountability of executives.”

In the United States alone, the study showed a 102 percent increase in CEO removals from the previous five years.

The settlements have been costly. In 2016, pre-Harvey Weinstein, harassment claims cost U.S. companies upwards of $482.1 million in Equal Employment Opportunity Commission (EEOC) settlements, which is an all-time high. (Note: Post-Harvey Weinstein, the EEOC sexual harassment section of its website experience a four-fold increase in visitors).

Corporate Vulnerabilities Show

With people feeling freer to report their alleged harassment, more people are expected to come forward with allegations in businesses of every size. Legitimate or not. That’s when social media, PR, and legal disasters can set in.

Now is the time to assess vulnerabilities. Brush off and tidy up (or create) complaint procedures. Develop a response plan before a response is needed. Start yearly, mandatory, in-person, interactive anti-harassment training for everyone, including board members. And make sure anyone who supervises anyone is trained on how to spot harassment, take complaints, conduct investigations, determine punishments and work with legal to finalize results.

The #MeToo movement is also bringing out more harassment victims. The EEOC, which received about 30,000 harassment complaints each year, estimates “only six percent to 13 percent of individuals who experience harassment file a formal complaint.” This makes educating supervisors on how to spot and stop harassment even more critical. Knowingly allowing harassment of any kind to go on creates a hostile work environment, which can force people to quit–and then sue.

Tips to Prevent and Respond to Sexual Harassment

Before the first complaint comes in–and definitely after–take action to protect employees and the business from future allegations.

  1. Tweak Training. Anti-harassment training is usually seen as a human resources requirement aimed at limiting liability. Nothing more. People will attend, but not engage. Make clear in communications, modeling by leaders, as well as in training that the corporate culture is one of equality and hands-off respect. Dump online training in favor of face-to-face role-playing so attendees know what kind of behavior is tolerated–and not.
  2. Increase Reporting Avenues. Usually, the affected person is directed to HR or their supervisor or some third-party hotline. That’s not good enough, especially when the harassment is coming from the supervisor. Harassed employees are unlikely to file complaints if they have to go to their supervisor. Make every lead worker, supervisor, manager, director, vice president, the president, and even board members contact points. Ensure they are given yearly training on how to handle harassment complaints along with their usual anti-harassment training.
  3. Be Blunt with CEOs and Top Executives. Explain the complaint. In the case of executive harassers, discuss how to protect the business from an expensive lawsuit in light of the executive’s actions. Courts hold executives and management to a higher standard. Keep in mind, if what’s potentially going on is known and no one tried to put a stop to it, the business–and the business owner and anyone else in charge–is open to corporate and personal liability.
  4. Get Help if Needed. Not everyone has the time to train to do investigations, especially in small businesses. There are outside agencies to turn to, not the least of which would be the business’ legal counsel. These people are better able to perform investigations, and they can explain any legal risks as well as provide guidance on how to proceed. Business owners who do proceed alone should have legal counsel review steps taken in the investigation, any notes and evidence before making a disciplinary or termination decision.

 

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4 Tips to Prevent and Respond to Sexual Harassment

15 Employment and Labor Resolutions for 2015, part 1 of 3

Now that the new year is well under way and we have all had an opportunity to settle in and organize ourselves for the coming year, I thought I should share some critical chores that need to be attended to keep you safely out of any legal twists.

Here are your first five resolutions as shared by Constangy, Brooks:

1. Make sure your “independent contractors” are really independent contractors. “Independent contractors” are under scrutiny by the Internal Revenue Service, the U.S. Department of Labor, the National Labor Relations Board, state and local agencies, plaintiffs’ lawyers, and union organizers. A mis-classification can cost you back taxes, back pay (including overtime), and back benefits, as well as penalties and interest. If you determine the manner in which an independent contractor performs his duties, including where and when the duties are performed, then the person is an employee.

2. Review your email policies. The NLRB recently found that employees generally have a right to use employer email systems during non-working time in support of union organizing and concerted activity. The Board’s decision means that many employer email use policies, as currently drafted, would probably be found to violate the National Labor Relations Act if an unfair labor practice charge were filed or a union tried to organize employees and argued that the employer’s email policy interfered with the organizing efforts. In light of the new “quickie election” rule that the NLRB issued last month, both union and non-union employers would be well advised to review their email policies and revise as needed. (The “quickie election” rule is scheduled to take effect on April 14, but the U.S. Chamber of Commerce and other employer groups, including the Society for Human Resources Management, filed suit on Monday seeking to block the rule.)

3. Review your policies on social media, confidentiality, and “courtesy.” The NLRB is going after garden-variety employer policies, taking the position that the policies interfere with and have a chilling effect on employees’ rights to engage in concerted activity. Among the commonplace policies under attack are those requiring that information about the company or employees be kept confidential; policies requiring that employees treat each other with courtesy, respect, and civility; and even some policies requiring that employees not disclose confidential and proprietary information. As with the email policies, a non-compliant policy could result in an unfair labor practice charge or the setting aside of an employer victory in a union election.

4. Review your severance agreements. The U.S. Equal Employment Opportunity Commission has taken the position that certain standard provisions in employee separation agreements unlawfully interfere with employee rights to bring or cooperate in the investigation of discrimination charges before the EEOC, and has filed suit against some employers using agreements with terms that the EEOC doesn’t like. One of the lawsuits has already been dismissed, but the court in that case did not make a ruling as to whether the EEOC’s position had merit. Even if you decide to take your chances with your current agreement, it’s not a bad idea to consider toning down provisions that you know the EEOC will find objectionable.

5. Review your leave policies and their administration. It’s not just the Family and Medical Leave Act anymore, although that’s enough in itself. You’ve probably seen that a number of states most recently, Massachusetts have enacted paid sick leave laws. Do your leave policies comply with the laws of the all the jurisdictions where you operate? And what do you do when an employee reaches the end of a sick leave or disability leave period? If you automatically terminate, then you could be in violation of the Americans with Disabilities Act as well as state or local disability rights laws.

This is a lot to take in, I know, but the reviews must be done by either your counsel (who specializes in labor law) or by an experienced human resource professional. Check in next week for another five HR resolutions.

Disclaimer I am not a licensed attorney. My blogs are based on my own experiences, interviews (where credited), and loads of research, and do not represent legal advice.
15 Employment and Labor Resolutions for 2015, part 1 of 3