How much do you really know, from an HR standpoint?
It's time for another employment law quiz! I wanted to do one in honor of Mother's Day, but I couldn't top the one I did last year. (If you missed it then, here's the link.) So we'll do #MeToo instead. As always, the answers immediately follow the questions, and if you lose, you'll still get a virtual Participation Trophy. Because to their mothers, all kids are special. :-)
1. Which big shot had to resign this week because of allegations of inappropriate and violent behavior toward women?
A. Donald Trump
B. Steven Colbert
C. Eric Schneiderman (attorney general of New York)
D. Kanye West
ANSWER: C. Mr. Schneiderman was profiled in an article by Ronan Farrow (give that guy another Pulitzer!). This is technically not an alleged workplace sexual harassment scenario. So far. According to the article, Mr. Schneiderman allegedly engaged in "nonconsensual violence" during consensual sex and threatened to have one woman followed and have her phones tapped (a credible threat coming from an Attorney General!). This woman and one other both told Mr. Farrow that Mr. Schneiderman threatened to kill them if they broke up with him. Mr. Schneiderman says all of this was consensual BDSM, but it was reported on Wednesday that even the "Kink community" (yes, that really is apparently a thing) has distanced itself from him. Ironically, Mr. Schneiderman had filed a civil rights lawsuit against Harvey Weinstein on behalf of the State of New York for Mr. Weinstein's alleged sexual misconduct. Mr. Schneiderman resigned as AG on Tuesday.
2. In the wake of #MeToo, employers should radically change the way they respond to sexual harassment allegations.
ANSWER: False. If you were doing things right before #MeToo (had a plain-language policy, conducted interactive training for your employees on a regular basis, gave employees multiple avenues for making complaints, and responded appropriately and promptly to complaints and didn't retaliate), then you are 90 percent of the way to success even in the #MeToo era. Radical changes won't be needed, but it is a good idea to make some adjustments (see below).
Of course, if you haven't been doing these things all along, then the changes you need to make will indeed be radical.
3. Which type of employee is most at risk for being credibly accused of sexual harassment in the #MeToo era?
A. Hourly rank-and-file
B. Front-line supervisors
C. Middle management
D. High-level executives, CEOs, and extraordinarily talented employees
ANSWER: D. Most people at the A, B, and C levels already know what's expected of them and know they'll be fired if they sexually harass anyone at work. But the D level people may have been given more -- ahem -- leeway because they were viewed as "indispensable" to the employer. The lesson for employers is that no one is immune from the consequences of workplace sexual harassment, no matter how much you think you need them.
4. Which category of individual is least likely to have had sexual harassment training?
A. Hourly rank-and-file employees
B. Members of the Board of Directors
C. High-level executives, CEOs, and extraordinarily talented employees
D. Supervisors and middle management
ANSWER: B. If you get a complaint about your CEO or someone else who is very high up in your organization, you can't let Human Resources handle the investigation. It will have to be led by someone who has authority over the accused individual. That's the only way to conduct a fair investigation without any conflict of interest. What that means is that the members of your Board of Directors, who should be in charge of investigations involving very high-level people, need to understand what harassment is, what to do if they get a complaint, and the legal risks associated with failure to take action. Many Board members don't know much, if anything, about this stuff because they aren't normally included in the employer's harassment training. (Even after the Board members get training, they should consider sending the investigation to outside legal counsel or to an experienced outside Human Resources consultant.)
You don't ever want an employee who is being harassed to fail to speak out because the person designated to receive the complaint reports to the alleged harasser, or -- heaven forbid, but it does occasionally happen -- is the alleged harasser.
5. Employers should add contact information for their Board of Directors to their harassment policies and training materials for all employees.
ANSWER: True. (Kinda hard to report harassment to members of the Board if you don't know who they are or how to get in touch with them.)
6. Now that we all know how serious sexual harassment can be, our training should focus on that and less on other types of harassment (racial, national origin, etc.).
ANSWER: False. These other types of harassment are just as bad, and can result in significant liability for employers. Harassment training should cover sexual, but also racial, national origin, age-based, disability-based, religious, sexual orientation, and gender identity. However, be aware of your state harassment training law if you have one. California and Connecticut mandate two hours of sexual harassment training. In California, that two hours must include training on gender identity and expression. If your employees are in these states, you'd have to satisfy the state's sexual harassment minimum and then add a segment covering the other forms of unlawful harassment. (New York State and New York City have new sexual harassment training requirements that will be taking effect soon. Details here.)
7. Now that we all know how serious sexual harassment can be, employers should proceed on the assumption that "the victim is always right."
ANSWER: False!!!!! Due process for the accused is, if anything, more important now than it was before. (And it has always been important.) Two things can happen when a legal claim gets a lot of attention in the media and with the public: (1) Many legitimate victims will feel free to come forward, which is great. (2) Some phony victims will see an opportunity and will make false allegations of sexual harassment. You will never go wrong by conducting a full and fair, objective investigation and by acting appropriately based on what you find. Don't let the #MeToo environment scare you out of doing the right thing.
6-7 right: #MeToo guru!
4-5 right: You are very appropriate.
2-3 right: Inappropriate, but probably not rising to the level of unlawful harassment.
0-1 right: #TimesUp for you! (But you still get a participation trophy)
Oh! I almost forgot! Happy Mother's Day weekend!