Reprint – How the Current Storm of Sexual Harassment Allegations May Be Affecting Your Workplace

Baby, It's Cold Outside – a 1944 duet covered by Dean Martin, Doris Day, and others – is a classic you have likely heard in the past few weeks. The exchange between male and female singers tracks a conversation in which he does his best to overcome her excuses so she'll stay a little longer. In years past, it was simply part of the background of Christmas; it stood out as flirtier than most holiday songs, but nothing more. This year, though, a new thought popped into my head when I heard it. Given the tipping point the country reached in early October when the New York Times published a story about Harvey Weinstein's sexual misdeeds, I listened to the dialogue between Baby and her suitor and wondered: Under today's standards, did she voluntarily decide to hang around or was she pressured into spending the night? In other words, did Baby consent or was she coerced?

Has my opinion of what constitutes sexual harassment changed because of the onslaught of allegations? No. And I think most of us feel the same way. But that’s not the point. The point is that we are now more sensitive to remarks or behavior that could be interpreted as sexual harassment. This heightened awareness will likely cause an uptick in sexual harassment complaints, and employers need to be prepared to address them.

So what should employers do to prevent and remedy sexual harassment? Here are seven tips:

  1. Immediately address any hint of harassment. Employers must investigate any allegation of sexual harassment and, if substantiated, take reasonable steps to stop it and prevent it from happening again. Whether the steps are reasonable depends on the situation, but they can range from giving the harasser a written warning to firing him. The good news is that if you investigate the allegation well and take reasonable steps to prevent the harassment from happening again, you are close to establishing a defense that will protect the company from exposure even if the harassment occurred.
  2. Invite complaints. You can't address it if you don't know about it, so make sure an employee who thinks she or he has been harassed has multiple ways to report it. Non-traditional options include allowing employee to go directly to the head of Human Resources or to the CEO or setting up an anonymous hotline or a dedicated email address. Find ways to make employees feel comfortable sharing these issues with you.
  3. Prevent retaliation. You must protect employees who complain of harassment or participate in the subsequent investigation. An employer can have 10 different ways for employees to report sexual harassment, but they are all useless if employees see that a victim was retaliated against for using them. You must not treat employees differently because they reported sexual harassment. (And make sure that's in your policy.)
  4. Train your workforce. At least annually train all employees on your harassment policies, including sexual harassment, and document the training. Ensure that every employee has signed a document that indicates he or she is aware of the company's policies and understands how to report harassment. That signature often comes in handy if the employee claims he or she was not aware of how to complain or did not feel comfortable doing so.
  5. Be on the lookout. Train all managers on how to police the workplace for sexual harassment. They must discourage inappropriate humor, watch for unwanted touching, and be aware of romantic relationships in the ranks.
  6. Consider your policy on interoffice relationships. Caution employees about romantic relationships between co-workers and consider prohibiting them between superiors and subordinates. How many of the recent reports of harassment in the news began as a consensual relationship?
  7. Lead well. Finally, require that all managers – from front-line to CEO – attend training on sexual harassment. They must understand what is expected of them and be more self-aware in their interactions with others. They have to avoid romantic relationships with subordinates to avoid the allegation that the subordinate could not really give consent due to the power possessed by the superior. They have to understand that more power you have, the more is expected of you.