This is Why You Need to Reexamine Your Sexual Harassment Policy Right Now

Unlawful sexual harassment has long been a problem in the workplace. However, starting with the Bill Cosby allegations and exploding with the Harvey Weinstein story, this is now the most visible employment issue in corporate America. In 2018, victims of sexual harassment are now more emboldened to speak up, as they should. In turn—and in remarkable numbers—business leaders in many industries are being called out for alleged bad behavior and forced to step down. The resulting emotional turmoil, business disruption, and injury to personal reputations are causing significant damage to businesses, internally and externally, and to many individuals involved.

According to EEOC statistics, during fiscal year 2016, more than 13,000 administrative charges alleged sex-based harassment. As more victims find their courage to speak up and speak out, this issue will continue to dominate the news. Meanwhile, harassment complaints made within company human resource programs and to government agencies, will continue to rise.

Your organization faces potentially devastating legal risks if you turn a blind eye to sexual harassers at any level of your organization. Furthermore, if the actions turn out to be serial in nature, your company’s reputation can be damaged beyond repair—especially if it’s at the top of the organizational chart. In today’s climate, the wisest business practice demands you proactively flush out inappropriate behavior and end it swiftly and decisively.

What should concerned businesses be doing about sexual harassment? Consider the following action steps:  

1. First off, review your current anti-harassment policy and audit the effectiveness of complaint reporting mechanisms and anti-retaliation precautions. Ask yourself:

  • Does your policy meet current legal standards and recommended practices? For instance, in light of whistleblower laws, how does your policy address the confidentiality of internal investigations and their results? Does it provide guidance for handling complaints about off-duty sexual conduct, including conduct that took place years ago? Or, behavior that—while offensive—had no direct connection to the workplace or a current employee? Are you addressing “false reporting” appropriately?
  • Does your policy truly encourage and empower employees to come forward without fear of reprisal? If your office has rumors or “open secrets” about inappropriate sexual conduct, you need to consider changing definitions of what constitutes inappropriate sexual harassment. In addition, add more reporting channels, beef up your investigation protocols, and clearly detail the range of remedial action that may be imposed for a violation.
  • Does your organization hold employees accountable—especially at the executive level—for their bad behavior in a meaningful manner? If not, what changes to the workplace’s culture must be made to ensure this happens? Cultural change has to begin at the top. If leaders are not modeling appropriate behavior, how can you expect rank-and-file employees to do so?

2. Identify vulnerabilities by connecting historical and current complaint data. Can you identify trends by geographic location, business unit or job category? What has been the company’s approach to investigating and responding to those complaints? For instance, has your response stopped the inappropriate behavior?  Or, has the employee gone outside the company for assistance, such as filing a charge with a government agency? If so, what has been the agency’s response? If your company is considering such a self-critical audit, I would advise evaluating the data on a privileged basis through your legal counsel.

3. Consider conducting an anonymous employee survey to determine whether unreported and still-festering harassment issues, rumors or open secrets negatively impact the company and pose continuing legal risks. Use a third-party administrator to ensure employees of the survey’s confidentiality.

4. Update your training programs to address the current situation in the #MeToo world we live in now. Companies cannot ignore the high-profile complaints and high-level terminations occurring in industries and government bodies across the country. Be thorough in scheduling additional training for all employees, at all levels in your company.

5. Finally, spend time on leadership buy-in before rolling out the updated policy. Conduct C-Suite, manager and supervisor meetings and “refresher” training so leaders know what is expected of them and the employees who report to them. Educate leaders regarding how best to proactively promote a workplace culture free from harassment, and spell out for them the potential consequences—both to the company and to them individually—of failure to achieve such a culture.

As with implementing any workplace policy or procedure, it is advisable to consult with your employment counsel for assistance in addressing these important and evolving issues.

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