The HR Minute

The #MeToo era has seen a nation-wide, media-driven focus on challenging workplace harassment, assault, and retaliation. In addition, the Time’s Up organization, founded by more than 1,000 women in the entertainment industry, established a Times Up Legal Defense Fund, (more aptly entitled a “Legal Offense Fund”), which is administered by the National Women’s Law Center.

This Legal Defense Fund’s first annual report, released in late 2018, revealed that it had raised more than $22 million to connect those employees who experienced workplace sexual harassment and retaliation with an attorney from among the nearly 800 attorneys who have joined their network. In the first year, the Fund had responded to more than 3,700 workers from all 50 states, and it had allocated more than $5 million to help fund 75 lawsuits. On May 21, 2019, the Fund, along with the ACLU and labor group Fight for $15, announced the filing of 25 new complaints against McDonald’s.

What can an employer do in order to be proactive and prevent harassment and retaliation in its workplace? How can a business avoid being on the receiving end of a lawsuit and the bad publicity that could be funded by this $22 million war chest? Here are some simple steps that should help avoid such a lawsuit and the attendant negative publicity.

Training Employees and Managers and Encouraging Reporting

It is critical that all employees be trained and encouraged to report harassment when it first occurs, and that it be clear to whom they should report their concerns. And, in case the alleged harassment is by a supervisor, employees must be provided with at least one person other than their supervisor to whom they can report harassment. Some companies have taken an even more pro-active stance and have established a hot-line where employees can report harassment.

In addition to training employees to report harassment promptly, it is critical that companies train managers to spot harassment in the workplace. This includes recognizing harassment from another employee or a customer as well as such unlawful behavior from the employees of an outside vendor towards a company’s employees.

Avoid Two Common Pitfalls with a Prompt Investigation and Warning of No Retaliation

One major pitfall can be avoided by promptly investigating and addressing any complaints of harassment or discrimination. Failure to act quickly can not only taint the handling of a complaint of harassment or discrimination, but if repeated, it can also help an employee to convince a court or the EEOC that it was futile to even report harassment.

A second major pitfall to avoid also happens after a company has received a complaint: upon receiving such notice, companies must make it crystal clear to the accused that he or she may not treat the accuser any differently, or suggest that other employees treat the accuser differently, because that could give rise to a separate charge by the charging employee that she or he was the victim of retaliation because she/he made a good faith report of harassment.

Clear Guidelines for Good Investigations: “PTF”

First, set up an investigation process so that someone who is assigned to investigate a charge of harassment is able, from a workload perspective, to “Put This First” on his or her agenda. Then, make sure that the investigation is “Prompt.” The more serious the charge, the more immediacy and urgency should be brought to the investigation, and it could require some temporary paid suspensions if the charges are very serious. Then, the investigation needs to be as “Thorough” as the situation demands. The more serious the charge, the more thorough it needs to be, going deeper into the facts and potential witnesses. And, finally, it needs to be “Fair,” in that the investigator and the final decision maker should not to be a friend (or a known enemy) of either the accuser or the accused.

Take Whatever Steps a Reasonable Person Would Take to Stop the Harassment if You Find it Occurred

Reasonable steps can include a negative write up in the employee’s file; mandatory anti-harassment and mutual respect training; reduction in pay; demotion; transfer; or, as necessary, termination.

Follow-Up

After the investigation is completed, and the discipline imposed where harassment has been found to occur, make sure someone is assigned to check in with the accuser at least monthly for a few months to make sure no “after the fact” retaliation is being directed to her or him.

Failure to Report Can be a Defense for the Company

If you build a good record of prompt, thorough, and fair investigations of charges of workplace harassment, that fact alone can be a defense for the Company, (not for the harasser), if an employee fails to report alleged harassment.

Best Practices Include Training for Managers and Investigators

Companies who are setting the gold standard for prevention in this area provide regular training for their managers and those assigned to investigate claims. Nelson Mullins’ employment attorneys offer such training and can tailor it to your industry and workforce.