1.) Review and Update Harassment Policy
By now, most employers have a written policy that prohibits harassment at work and sets forth a process under which employees can report suspected harassment. Many of these policies, however, were drafted 20 years ago and do not reflect today’s workplace or incorporate developments in the law. For instance, a policy that identifies only one person to handle concerns of harassment is insufficient. What if that person is the alleged harasser or is close to the alleged harasser? Following the policy, under those circumstances, may be practically infeasible. Another somewhat common and antiquated feature of some sexual harassment policies is language that states something to the effect of, “if it is determined that your complaint was made in bad faith, then you will be subject to discipline.” This language is ill-advised because it may be read as a deterrent to bringing concerns of sexual harassment forward. Does your policy incorporate the modern state of technology? If your policy refers to Blackberries, facsimile or similar technology but does not address social media or texting, it’s time for a refresh.
2.) Consider Training for Managers and Employees
#MeToo, while bringing the issue of sexual harassment into the light of day, has also generated a lot of confusion about what is and isn’t sexual harassment. Most managers do not know what constitutes sexual harassment and are therefore not in a position to appropriately prevent it. All employees should know what type of conduct the employer expects in the workplace. There is a fair amount of “gray” in this area, and setting forth clear expectations is the best way to remind employees of what will not be tolerated.
3.) Reaffirm the Company’s Commitment to Providing a Workplace Free from Harassment
With all of the attention on sexual harassment recently, employers may be wondering “what has my employer done to address this issue? Do they really care?” A simple email from company leadership proactively expressing the company’s commitment to a harassment-free workplace is a good starting point. A link to the company’s sexual harassment policy would also be helpful.
4.) Consider Implementing a Policy Regarding Romantic Relationships in the Workplace
Often, claims of sexual harassment arise from a relationship that at one time was consensual. Other times, only one participant views the relationship as consensual. Prohibiting any kind of romantic relationship between a boss and his or her subordinate is a wise policy. There is almost never a good outcome to a romantic relationship between direct reports. With respect to peer romantic relationships or relationships between two people who do not have a reporting relationship with one another, the best practice is to require disclosure or the relationship and an acknowledgment of the consensual nature of the relationship.
5.) If a Concern About Sexual Harassment is Raised, Consider Bringing in an Outside Neutral Investigator
Human resources professionals are rarely trained and equipped to conduct an appropriate investigation into allegations of sexual harassment. Moreover, there is an inherent conflict, often, for the HR manager whose role is in part to protect the company. The higher the accused is in the organization, the more difficult it may be to render a truly objective determination as to whether anything improper has occurred.
If there is one take away for businesses of the #MeToo movement, it’s that business, as usual, will no longer cut it. Smart employers will take appropriate measures in reaction to this growing awareness around the issue of sexual harassment.
