In the last several weeks, allegations of rampant sexual harassment have shocked the collective conscience. With the assistance of social media, what started as an allegation against a Hollywood mogul snowballed into a nation-wide conversation about sexual harassment in the workplace and elsewhere. According to the Washington Post, hundreds of thousands of men and women took to Twitter and Facebook to express they had been victims of sexual harassment, many of them using the hashtag “MeToo” to show solidarity with other victims.
In light of the revelations of the #MeToo campaign, employers would be wise to revisit their anti-harassment policies and practices to ensure that they are in compliance with the law and that they are fostering a workplace environment where all employees can thrive.
Here are some best practices:
- Tone at the Top;
Encourage the leaders at the very top of the organization to take an unequivocal stance in support of a diverse, inclusive, and respectful workplace in which harassment is not tolerated.
- Teach Respect & Civility;
The EEOC believes that “much of the training done over the last 30 years has not worked as a prevention tool” because “it’s been too focused on simply avoiding legal liability.” Consider updating your anti-sexual harassment training to include instructions for fostering respect, civility, and professionalism.
- Incentivize Vigilance;
Recognize and reward supervisors and managers that regularly engage in the promotion of a safe and inclusive workplace.
- Modernize Your Policies;
Update your anti-sexual harassment policies to ensure that they include, the provisions recommended by the EEOC:
- A clear explanation of prohibited conduct, including examples;
- Clear assurance that employees who make complaints or provide information related to complaints, witnesses, and others who participate in the investigation will be protected against retaliation;
- A clearly described complaint process that provides multiple, accessible avenues of complaint;
- Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
- A complaint process that provides a prompt, thorough, and impartial investigation; and
- Assurance that the employer will take immediate and proportionate corrective action when it determines that harassment has occurred, and respond appropriately to behavior which may not be legally-actionable “harassment” but which, left unchecked, may lead to same.
- Social Media:
When drafting harassment policies consider explicitly prohibiting workplace harassment via social medial and similarly, when drafting social media policies consider specific and explicit prohibitions concerning harassment.
- Complaints and Investigations:
Whether you use internal resources or external investigators, it is critical to conduct effective and balanced investigations of all complaints. The EEOC believes that the following elements will make complaint and reporting systems work well and provide employees with faith in the system:
- Employees who receive harassment complaints must take the complaints seriously.
- The reporting system must provide timely responses and investigations.
- The system must provide a supportive environment where employees feel safe to express their views and do not experience retribution.
- The system must ensure that investigators are well-trained, objective, and neutral, especially where investigators are internal company employees.
- The privacy of both the accuser and the accused should be protected to the greatest extent possible, consistent with legal obligations and conducting a thorough, effective investigation.
- Investigators should document all steps taken from the point of first contact, prepare a written report using guidelines to weigh credibility, and communicate the determination to all relevant parties.
- Hold Violators Accountable.
Ensure that violators of the anti-sexual harassment policy face prompt and proportionate discipline relative to the severity of the violation and existence of prior infractions. Communicate that no one is above reproach—not “rain-makers,” experts, or high-level executives.
- Audit and Train
Consider working with outside counsel to conduct a privileged audit to assess how you previously have handled complaints of sexual harassment, and remedy any weaknesses found in protocols and policies. Also consider auditing your past training programs to ensure they are up to date and reflect best practices. Finally, consider adding a consensual relationship policy. Your Employment Law contact at Orrick can assist.