Revisiting Your Sexual Harassment Policy During the #MeToo Uprising

Unlawful sexual harassment, long a problem in the workplace, has become the most visible employment issue in corporate America.  Victims of sexual harassment are emboldened to speak up, as they should.  In turn—and in remarkable numbers—business leaders in many industries are being called out for alleged bad behavior and forced to step down. The resulting emotional turmoil, business disruption, and injury to personal reputations are causing significant damage to businesses, internally and externally, and to many individuals involved.

According to EEOC statistics, during fiscal year 2016 more than 13,000 administrative charges alleged sex-based harassment. As more victims find their voices, this issue will continue to dominate the news while harassment complaints, made within company human resource programs and to government agencies, will continue to rise. Businesses face huge legal and reputational risks if they turn a blind eye to serial perpetrators at any level of the organization, but especially at the top. In today’s climate, the wisest business practice will be to pro-actively ferret out inappropriate behavior and end it swiftly and decisively. 

What should concerned businesses be doing?  Consider the following action steps:

1.  Review the existing anti-harassment policy and audit the effectiveness of complaint reporting mechanisms and anti-retaliation precautions.  Ask yourself:

  1. Does your policy meet current legal standards and recommended practices?  For instance, in light of federal and state whistleblower laws, how does the policy address the confidentiality of internal investigations and their results? Does it provide guidance for handling complaints about off-duty sexual conduct, including conduct that took place years ago or that—while offensive—had no direct connection to the workplace or a current employee? Is “false reporting” addressed appropriately?  
  1. Does the policy truly encourage and empower employees to come forward without fear of reprisal?  If the workplace has rumors or “open secrets” about inappropriate sexual conduct, consider changing definitions of what constitutes inappropriate sexual harassment, adding more reporting channels, beefing up the investigation protocol, and detailing the range of remedial action that may be imposed for a violation.  
  1. Does the company hold employees accountable—especially at the executive level—for their bad behavior in a meaningful and proportional manner?  If not, what changes to the workplace’s culture must be made to ensure this happens? Cultural change must start with buy-in at the top.  If leaders are not modeling appropriate behavior, how can you expect rank-and-file employees to do so?

2.  Identify vulnerabilities by harnessing complaint data, both historical and current.  Can you identify trends by geographic location, business unit or job category?  What has been the company’s approach to investigating and responding to those complaints?  Has the company’s response stopped the offending behavior?  Have employees gone outside the company for assistance (e.g., filed a charge with a governmental agency)?  If so, what has been the agency’s response?  A company considering such self-critical analysis must also decide whether to evaluate such data on a privileged basis through its  legal counsel.

3.  Consider conducting an anonymous employee survey to determine whether unreported and still-festering harassment issues, rumors or open secrets negatively impact the company and pose continuing legal risks. 

4.  Make necessary or desired adjustments not only to the company’s existing anti-harassment policy and complaint-reporting procedures, but also to the content and frequency of anti-harassment training. Consider updating training programs to address the current rash of high-profile complaints and high-level terminations occurring in industries and government bodies across the country. Be diligent in scheduling additional training for all employees, at all levels in your company.   

5.  Because workplace culture is critical to identifying and preventing harassment, schedule and spend time on leadership “buy-in” before rolling out the updated policy. Conduct C-Suite, manager and supervisor meetings and “refresher” training so leaders know what is expected of them and the employees who report to them.  Educate leaders regarding how best to proactively promote a workplace culture free from harassment, and spell out for them the potential consequences—both to the company and to them individually—of failure to achieve such a culture.   

As with implementing any workplace policy or procedure, it is advisable to consult with your employment counsel for assistance in addressing these important and evolving issues.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.