Who will be next? After Matt Lauer, Garrison Keiller, and Russell Simmons each faced assertions of inappropriate conduct in the last week, the “who’s next” question predominates pop culture and the daily news cycle. In the wake of numerous sexual harassment accusations unfolding across Hollywood and corporate America, sexual harassment has become one of the hottest topics in today’s news. While claims of sexual harassment in the workplace are nothing new, the almost daily media coverage of so many high-profile claims will likely result in an increase in reports of sexual harassment allegations for many employers in the immediate future.
Many of the recent allegations of sexual harassment garnering the media spotlight have involved a “star” employee of an organization—whether that is a member of the organization’s C-suite, an elite rainmaker, or a high producer. Historically, some individuals in these positions believed they were immune to such claims. Unfortunately, companies often ignored reports of bad behavior or excused it because of the “star” status of the key employee. The current reckoning over sexual harassment in the workplace is proving that no one is too powerful to fall, and companies must ensure that such “star employee” claims are investigated as promptly and thoroughly as any other claim.
As these high-profile sexual harassment claims continue to unfold, they have also given rise to the #MeToo movement. Individuals started posting #MeToo on social media as a symbol that they have personally experienced sexual harassment or assault. With millions of individuals making these posts over various social media platforms, it is likely that a supervisor or HR professional may become aware that an employee is participating in the movement by posting #MeToo on social media. Although this is not a traditional report of a sexual harassment allegation, it should not be ignored.
Given that both of these issues are garnering significant media attention, employers will undoubtedly be focused on taking prompt disciplinary action to address alleged sexual harassment claims. Employers should, however, keep the following practical tips in mind:
YOU’VE RECEIVED A COMPLAINT – NOW WHAT? INVESTIGATE.
1. Employers should take all complaints, even informal discussions, seriously.
When supervisors, managers, or HR receive a formal complaint alleging sexual harassment, most employers have a set procedure in place that is regularly followed. The complaints that employers often miss are those that are made informally or with a request that the supervisor “not do anything about it.” They are sometimes also missed because the employee who was harassed jokes or makes light about it or discusses what happened in a casual or non-complaining manner with others, without it being particularly apparent that he/she might be upset about it.
With the #MeToo movement, employers are more likely than ever to learn about potential employee complaints of sexual harassment through social media. A public post from an employee may create both potential legal liability and public relations concerns. If an employer learns of a #MeToo post that has sufficient detail for the company to suspect that the alleged conduct took place in their workforce, the employer should consider meeting with the employee who made the social media post to determine if there is a complaint that needs to be investigated further. Employers should not approach these meetings in an aggressive or intimidating way. The intent of the meeting should be to open the door to a conversation that would allow the employee the opportunity to disclose any potential complaints that need to be investigated. If the employee discloses a complaint or concern during the meeting or otherwise, the employer should conduct a prompt investigation. If there is sufficient information in the social media post to indicate who the alleged wrongdoer is without the employee disclosing a complaint or concern, the employer should consider proceeding with conducting an investigation.
Employers should also keep in mind that this is not intended to encourage employers to start snooping on their employees’ social media sites. Employers must still be cautious about the risks associated with social media but should not ignore a #MeToo post if the employer becomes aware of it.
2. Conduct prompt and thorough investigations.
With the recent rash of allegations of sexual harassment against high profile individuals, it would be easy for an employer to jump to a conclusion that the allegation of sexual harassment is true and to take action immediately. Absent immediate admission of wrongdoing by the alleged wrongdoer, an allegation of sexual harassment should not immediately trigger discipline of the alleged wrongdoer. If an employee reports a claim of sexual harassment, the claim should be investigated promptly and thoroughly. The investigation should involve interviews of both the employee making the claim and the alleged wrongdoer. Employers should also consider which co-workers of the complaining party and alleged wrongdoer should be interviewed, as those witnesses can often provide corroborating evidence. It is also important for the company to interview any specific individual that the complaining employee or alleged wrongdoer identifies as a person with relevant knowledge.
If the company’s interviews and/or available documentation indicate that there is credible evidence of wrongdoing, whether the conduct rises to the legal level of sexual harassment or not, the employer should then proceed with addressing the alleged conduct consistent with its policies and/or disciplinary procedures. Employers should be careful to properly maintain all documentation and information relevant to the complaint, investigation, and determination.
Once word of a claim against a “star” employee gets out, additional claims from past and/or present employees will likely begin coming out of the woodwork. It is imperative that the company investigate all complaints equally and thoroughly, even if the company has reason to believe the claims are unfounded. It is also important to note that often the additional allegations that are made are based on conduct that allegedly occurred years ago. Even if the alleged wrongdoer is no longer with the company or if the legal statute of limitations has passed, it is still a good practice for the company to conduct a thorough investigation of the alleged conduct for employee morale purposes as well as to determine if other claims may exist.
Investigations into “star” employees can be especially difficult for employers, and it is often appropriate in such situations to bring in an outside investigator in order to maintain neutrality. Whether the investigation is external or internal, employers should consider whether or not the investigation (or at least portions of it, such as conclusions and recommendations) should be conducted under attorney-client privilege, at least initially.
3. Prepare for push back from managers and/or owners regarding “star” employees.
The most significant challenge that HR professionals face when dealing with complaints against “star” employees is that the “star” employee is an outstanding performer and/or may be seen as “essential” to maintaining the company’s bottom line. HR professionals should educate their C-suite employees and managers that no employee, regardless of his or her perceived importance within the organization, is immune from the company’s policies regarding sexual harassment. The employer should also consider whether it is necessary to engage legal counsel to articulate the legal liability and employee morale consequences associated with making exceptions for “star” employees and the potential costs associated with such claims.
4. Prepare a consistent message.
When an employee makes a claim of sexual harassment against another employee, the employer must be prepared to address questions about the complaint and/or investigation in a consistent manner. The employer should focus on communicating a consistent message to employees. This is an opportunity to make it clear to all employees that the company’s sexual harassment policy will be enforced equally across all levels of the company and to send the clear and unambiguous message to employees that sexual harassment is not acceptable and will not be tolerated. The employer should also consider preparing a media response for use should the investigation and/or company response attract media attention. This consideration is especially important with “star” employees.
WE HAVEN’T HAD ANY COMPLAINTS – WHAT CAN WE DO RIGHT NOW? RECOMMENDED IMMEDIATE PROACTIVE ACTIONS
Employers should consider immediately taking the following proactive actions:
1. Review and update the anti-harassment policy to include specific references to sexual harassment.
Employers should review their anti-harassment policies to ensure that “sexual” harassment is adequately covered as a type of unlawful harassment. The policy should include the following key components: (1) a statement that the company prohibits sexual harassment; (2) an appropriate definition of sexual harassment which states that unwanted sexual advances are considered sexual harassment; (3) a statement that all complaints will be investigated promptly and thoroughly; and (4) a statement prohibiting retaliation against any employee that complains of or participates in an investigation regarding sexual harassment. Employers should also confirm that the policy sets forth multiple people to whom the employee can report allegations of sexual harassment. Such a reporting mechanism will help to avoid the type of situation where an employee fails to report because the employee is expected to “follow the chain of command” and the alleged wrongdoer is the employee’s direct supervisor.
2. Implement additional or new sexual harassment training.
Employers should also consider taking this opportunity to implement additional or new harassment training (including a robust sexual harassment component) to employees across all levels of the company, including at the executive level. The training should cover not only what conduct constitutes unlawful harassment, but also what conduct is considered appropriate and inappropriate in the workplace, even if the conduct does not rise to the level of legal harassment. The trainer should reiterate the company’s reporting procedures and prohibition on retaliation and specifically focus on the concept that all employees, including the “star” employees, are required to comply with the policies. Finally, employers should consider utilizing a third-party to provide harassment training to emphasize the significance of the training and requiring a top level executive to introduce the training and reiterate the company’s position on sexual and non-sexual harassment and retaliation.