Harvey Weinstein. Kevin Spacey. Charlie Rose. Louis C.K. Roy Moore. Al Franken. John Conyers. The list grows daily. Women and men are coming forward with allegations of sexual harassment and abuse, and some of the allegations are truly shocking. Although we normally presume that an accused person is innocent, in many of these cases the alleged perpetrators have either admitted to the conduct or, at least, have failed to deny it. In the case of Sen. Franken, there are photos.
Although right now the allegations getting the publicity are coming primarily from the entertainment industry, politics, and the media, employers everywhere are waiting for their own shoes to drop. According to a recent article in The New York Times, men are reportedly – and understandably – concerned about how they should behave, whether they have ever crossed a line, and whether they ever failed to speak out about harassment when they should have done so.
With that in mind, here are some FAQs for employers who don’t want to be the next Weinstein Company.
Why are these allegations coming from entertainment, politics, and media?
No one knows for sure, but one can theorize. First, an accused individual in these fields (as well as the accuser) is more likely to be well known, which means the allegations will draw more media attention for that reason alone.
Second, it’s possible that individuals in these industries have bigger egos and less accountability than a typical corporate manager. Generally, the accused individuals are either at the top or near the top of their organizations (Mr. Weinstein) with only a Board of Directors to answer to, or they’re supremely and uniquely talented (Mr. Spacey, Louis C.K., Sen. Franken), or powerful in other ways (the politicians).
Boards of Directors are often reluctant to take action against the person running the company, even assuming that a victim has overcome the hurdle of making a complaint directly to the Board. And as news of the settlement of one harassment claim against Rep. Conyers has shown, the federal government’s procedure for dealing with harassment allegations wouldn’t pass muster at even the most non-compliant company in the private sector.
Should employers outside of these high-profile areas be concerned?
Yes, be concerned, but don’t panic. The recent publicity is likely to result in more complaints of harassment than employers may have seen in the past few years. It’s also possible that the publicity created by these high-profile complaints will mean that employees in all industries are going to be less likely to ignore known harassers, even if they might have done so in the past.
What should employers do to be ready?
1) Make sure your harassment policy is up to date and has been recently communicated to employees.
2) Conduct harassment training for management if you haven’t done so within the past year. The Equal Employment Opportunity Commission has provided some helpful guidance about effective harassment training. Among other things, the EEOC recommends (and we agree) that the training be live and interactive if possible, or computer-based and interactive if live training is not possible. The CEO or other top person in the organization should provide full, public support for the training and a harassment-free workplace. The substance of the training should not just recite the legal definitions related to workplace harassment but should provide real-world examples, tailored to the employer’s particular work environment. Management training should also include specific guidance on what the manager should do if he or she receives a complaint or becomes aware of an issue. Managers should be allowed to comment and ask questions. The training should also include a component on retaliation.
There is one EEOC recommendation with which we take issue: the suggestion that employers conduct anonymous employee surveys regarding workplace harassment. These surveys might reveal information that is potentially damaging to the company and are unlikely to be attorney-client privileged (even if counsel is involved) because non-management employees are not legally “the company.” If the survey is not privileged, then the results could be subject to disclosure in the event of an EEOC charge or a lawsuit. Employers seeking to gather information about harassment in the workplace are advised to consult with their employment counsel on developing a survey methodology that would be protected from disclosure.
Also note that certain states have their own requirements for harassment training. California is the most noteworthy, but it is not the only one. Be sure that your training complies with any applicable state requirements.
3) Conduct harassment training for non-management employees. Employee training does not have to be as in-depth as the training for management, but it should cover the following: (a) the type of behavior that can get an employee in trouble (or, conversely, that would be considered “harassment” in violation of company policy if the employee is subjected to it), (b) what the employee should do if the employee believes he or she may have been a victim of harassment (including going to the Board of Directors if the harasser is at the top of the management hierarchy), and (c) what retaliation is, that it is prohibited, and how to register a complaint of retaliation.
4) Conduct appropriate harassment training for your Board of Directors. If a person at the top of your organization is harassing employees, then he or she may have no other “boss” than the Board. Board members need to know what to do if they receive a complaint or otherwise become aware of a harassment situation. They need to understand their responsibility not to be a mere “rubber stamp” for the organization’s leadership. They also need to know what retaliation is, and that it is illegal.
5) Ask yourself whether you (as a company) have been tolerating, or ignoring, an employee who has a reputation for being a predator. According to news reports, when an employee tried to complain about Charlie Rose to Mr. Rose’s executive producer, she was told, “Oh, that’s just Charlie being Charlie.” If you are aware of an employee whose bad behavior has been tolerated for years, this would be a good time to stop tolerating it and start addressing it.
6) If the allegations of harassment are widespread, or involve someone very high up in the organization, consider getting outside help for your investigation. Ideally, if the investigation cannot be done internally, it would be conducted by outside employment law counsel or a Human Resources consultant. In addition to conducting an objective investigation, an outsider can provide legally sound guidance on whether and what remedial action should be taken.
(NOTE: There are important issues related to attorney-client privilege involved in harassment investigations. Be sure you think these through thoroughly before you make a decision about who will conduct your investigation and make recommendations.)
Many of these harassment complaints in the media are really old. What if an employee comes forward and says that she was sexually harassed by an executive 15 years ago? What can we do about it after so much time has passed?
The good news is that the employee would not be able to sue your company or file a charge of discrimination based on such a “stale” complaint, assuming that there were no subsequent incidents. The bad news is that, if this executive did indeed harass one employee 15 years ago, he (or she) may have harassed other employees more recently. Even though you may not be in danger of legal action, you should accept the complaint, investigate it to the best of your ability with outside help if necessary, follow all leads wherever they take you (including, possibly, to other victims), and take appropriate action based on what you find.
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