Employers in the Age of #MeToo: Proactive Steps for Reducing Sexual Misconduct

by Hirschfeld Kraemer LLP

Hirschfeld Kraemer LLP

I recently attended a conference session on cybersecurity. The panelists noted that, while organizations may be using best practices now, there is a possibility that a hacker hid something on the organization’s server years ago and is just waiting for the right time to activate it.  In this case, there is seemingly very little that can be done.

This phenomenon closely parallels the recent #MeToo development of female employees coming forward to report sexual misconduct in the workplace – while employers may be using best practices now, buried in their organization’s history are experiences of sexual misconduct that were never reported. With the growth of the #MeToo, we’ve answered questions daily about what to do with reports by former employees, reports against former employees, reports against current employees from years ago, and every other permutation one could imagine.   Employers are sitting by nervously, wondering who will come forward and against whom.  Will the statute of limitations have run? Even if it has, what will be the impact on the organization’s brand?

Unlike the server hack, there are proactive actions that organizations can take now to ensure that the era of #MeToo serves its purpose: airing the inappropriate practices of the past and creating an environment in which the conduct either doesn’t happen (an ideal world) or is effectively addressed when it does happen (#goals).

Own It
First, organizations need to recognize and own their culture.  Studies by the U.S. Centers for Disease Control show that compliance-focused trainings do not change a culture.  Yes, you have to do them, whether required by law or as a best practice. But do not be fooled that an annual web-based click-through training changes a culture.

  • Where are the problem areas?
  • Who is not being held accountable?
  • Have you conducted a climate survey?

If you really want to address the areas of vulnerability, then you really need to summon the courage to do a candid assessment of your organization and then take appropriate and effective action.  Research on bystander intervention is promising. Trainings should focus on recognizing and calling out inappropriate conduct – particularly effective when the intervention is by senior level employees of the organization. Codes of conduct should get real.  Why do so many sexual harassers insist on employees coming to their hotel rooms? So they can answer the door in a towel? Happens all the time but off-premises conduct is rarely explicitly addressed in the policy.

Quantify It
Second, organizations should track and assess reports of sexual misconduct.  Reports going up? In the campus sexual assault area, increased reports were hailed as a positive indicator that individuals felt empowered to come forward and report.  No reports? It is statistically improbable that no one in your organization has experienced any concerning behavior. What that tells me is that you have not fostered a culture that encourages reporting.  People won’t report if they don’t trust the process, don’t trust the organization’s promise of accountability or if they perceive they will experience retaliation.  Top-down assurances of integrity in the process and accountability can help to promote reporting.  Once the organization starts to receive reports, it should embrace the data-driven era and address where there are trends and patterns, even if to do so would be embarrassing or less profitable.  Again, this assumes that the organization’s goal is to root out and address sexual misconduct.

Address It
Finally, organizations that truly want to reduce sexual misconduct in the workplace should foster a culture of accountability.  We’ve seen the number of settlements reached by serial sexual harassers.  That’s an organizational decision and reflects certain priorities.  Your employees aren’t dumb – that’s why you keep them! They know the score. If an employee has engaged in sexual misconduct, it’s time to make the hard decisions about what to do, commensurate with the findings of misconduct.

The era of #MeToo offers employers an opportunity to clean up past problems, implement cultural changes and see a way forward.  Hiding behind a statute of limitations is a risky move in this day and age where social media activism can take down a brand in a matter of days.  Be brave, look in the organization’s skeleton closet and have the courage to imagine a better workplace.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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