Me Too? Time for All Employers to Update their Anti-Harassment Policies

by Ballard Spahr LLP
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Ballard Spahr LLP

Sexual harassment has been headline news for many months now. It is almost impossible to go more than a few days without the headlines reporting another high-profile resignation or firing due to harassment allegations. Notably, Time magazine’s 2017 Person of the Year—"the person or group… who most influenced the news during the past year, for better or for worse"—was the Silence Breakers, those whose stories of harassment brought the #MeToo to prominence.

Most human resources professionals and employment lawyers expect a significant increase in workplace harassment and retaliation complaints in 2018, piggybacking on the widespread publicity this issue has received. Significant damage awards and reputational harm are among the potential consequences of not addressing the issue now. Having an effective anti-harassment program is the most important action an employer can take to protect itself—and its employees—from workplace harassment and related claims.

Businesses should take the time now to audit their anti-harassment programs with an eye on the following issues:

The Written Policy:

  • The policy should be straightforward and easy to understand. It should include "real life" examples of prohibited conduct and the penalties that may be imposed.
  • The policy should be integrated with other, related policies, e.g., computer and internet use, email, social media and anti-fraternization.
  • Because the law prohibits workplace harassment based on any legally protected class, the policy should do so as well.
  • Consider where to set the bar. Policies can be much more effective in changing workplace behavior, and more understandable to employees, if they set the bar higher than required by law and insist on professional and respectful conduct in the workplace, rather than prohibiting only illegal actions that meet the not-always-easy-to apply legal standard for "harassment."

Communication and Commitment:

  • Written policies, although essential to your overall program, are not enough. Disseminate and publicize the anti-harassment policy to all levels of the organization. There should be evident commitment from the "C Suite."
  • Consider how often and through what channels the organization's commitment to anti-harassment is disseminated.

Training:

  • To be useful, training must be effective. Tailor trainings to the appropriate audience. A uniform training program used for both rank and file employees and executives/managers may not be sufficient.
  • Periodic training is appropriate, even in states that do not require it, so that the company's message is clear and reinforced.
  • Consider using live, interactive training, rather than on-line, off the shelf programs. In-person training can be far more memorable and, thus, more effective.

Reporting Channels:

  • Encourage employees to report all instances of harassment.
  • Design a complaint procedure that is easy to access, and effectively coordinates the reporting and review process.
  • Consider using an ombudsman or a hotline, and think carefully about how complaints against the CEO or others senior leaders will be handled.

Investigation:

  • Promptly and thoroughly investigate all complaints.
  • Ensure that staff members who will receive and investigate complaints are adequately trained.
  • Consider the pros and cons of utilizing internal and/or external investigators. Keep in mind the need to preserve credibility, impartiality, and confidentiality, the experience level needed to address the situation, and the possibility the investigator may have to testify if the matter goes to trial.

Remedies:

  • The law does not require discharge in every case. The penalty for a substantiated complaint should be designed to address the behavior at issue.
  • Consider this last point when making discipline/discharge decisions. The policy itself may be general but each decision should reflect the facts of each case.

No Retaliation:

  • The policy should contain a no-retaliation pledge. Enforce this pledge strictly and uniformly. And be careful of a backlash by individuals who want to avoid working with employees of other genders, races etc., to avoid the potential for harassment accusations.

Although you may already have anti-harassment policies and/or conduct training, it may have been some time since these measures were implemented and they may no longer be sufficient in today’s 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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