It all began with Harvey. Last week, Matt Lauer and NBC shared the “spotlight.” This week has been busy, too. Congressman John Conyers resigned on Tuesday and Al Franken announced today he is resigning from the Senate. Will Bob (or Sally) at your company be next to make the news? While your business may not have the notoriety of Hollywood or NBC, it is not immune from harassment allegations. Sexual harassment is real. It happens at companies of all sizes … but it doesn’t have to.
What can companies do to prevent sexual harassment? For starters, do not tolerate a culture of unprofessional behavior. One common theme of the recent newsmakers has been that numerous people dismissed the allegations, sometimes for years, as “well, that’s just how Harvey is. Everyone knows that.” What? Really? No way! Don’t tolerate the jokes. Don’t tolerate the sexually-charged comments or text messages. Don’t tolerate the pornographic images. Certainly don’t tolerate inappropriate physical contact! Those behaviors do not belong in a workplace. Just because employees do not complain does not mean that the behavior is welcome.
Second, train your employees and managers to identify and address sexual harassment. This does not mean that you should dust off that VHS tape from 1985 filmed at the Saturn car assembly plant. The training should be real, practical and in-person so that employees can ask questions. It should include examples that your employees might actually encounter. If your company is ever the subject of an investigation or harassment allegation, the fact that your employees received training will support the company’s defense.
Make sure that the training references the company’s anti-harassment policy that is included in the employee handbook. Don’t just say “here it is.” Show your employees how it works. Step by step. Speaking of policies … have your handbook and harassment policy been updated since the Clinton administration (or even 2015)? Now is the time to dust them off. Many employment laws have changed in the last few years and your policies should reflect these updates. Get them to your attorney for a legal review to make sure your handbook is current and effective.
Third, create a culture where employees are comfortable reporting inappropriate behavior. This is where a good HR professional demonstrates true value to the company. Listen to the accuser. Remove emotion from the situation; don’t make a snap judgment that the alleged harasser is guilty or not. Get the facts. Obtain statements from the accuser, alleged harasser and any witnesses. Give the alleged harasser an opportunity to be heard. Promise discretion to the accuser, but not complete confidentiality. After all, how can you fully investigate without disclosing at least some of the information you have received? What if the individual suddenly says “forget about it” or “I don’t want to pursue it”? Investigate anyway. With knowledge comes liability. If the company has knowledge of allegations, it is obligated to investigate and root out harassment.
Finally, take action. There is no cookie-cutter response for “action.” In egregious instances where the conduct is severe, pervasive and/or involves physical contact or threats, termination might be the correct approach. In other cases, progressive discipline, separating the employees and/or providing training may be appropriate. Keep in mind that sometimes, the investigation may show that no discipline is warranted at all.
While I acknowledge this statement appears self-serving, companies are wise to involve legal counsel early in the process. Legal counsel can review handbooks and policies to ensure legal compliance. We can tailor training programs to your specific company. We can offer advice to keep a harassment allegation from turning into a federal lawsuit. Throughout the process, discussions with legal counsel are protected by the attorney/client privilege, which shields the content of the discussions from the discovery process in the event that a lawsuit is filed. Despite what you may be thinking, involving legal counsel early will ultimately save the company money. Clients who wait until things are far down the path end up with higher bills than proactive clients.
At Graydon, we are putting together a brand new harassment training program that will tackle modern harassment issues facing employers. Like our other training programs, it will be informative, practical … and fun! More details to come after the Holidays.