The #MeToo movement shines light on workplace harassment, opening conversations that span across industries and work environments. Balch’s #MeToo task force brings together a multi-disciplinary group of attorneys who advise employers on harassment-related matters. The team’s deep experience in labor and employment compliance, employment litigation, and investigation response is combined with industry-specific insights to offer fully integrated counsel to businesses.
We sat down with a few members of our #MeToo task force to discuss opportunities for employers to proactively address workplace harassment, as well as steps to take when managing an investigation. Kelly Pate, Dorman Walker and Martha Thompson, partners in our labor and employment practice share their insights:
What is the largest workplace harassment risk facing employers today?
Kelly: Complacency is an employer’s worst enemy. No workplace is immune from a bad actor or the perception that a bad actor roams the hallways. Be alert and proactively monitor the culture of the workplace, the company’s compliance with policies, and the methods the company uses to demonstrate policy enforcement.
Dorman: Often, employees are reluctant to report harassment. Studies— and the #MeToo movement– leave no doubt that in the average workplace, harassment is endured rather than reported. While failure to report may allow the employer to assert the Farragher legal defense in litigation, employers should want to avoid the heavy direct and indirect costs of workplace harassment, which include loss of valuable employees, employee alienation, low morale, symptoms of anxiety and depression, and an inability to bring out the best in employees. Employees are more likely to report harassment if they believe that their complaint will be taken seriously, promptly investigated by a well-trained independent professional, duly resolved, and will not adversely impact their continued employment.
Martha: Employers that do not aggressively encourage reporting of inappropriate behavior and apply policies and procedures to everyone – no matter what level of responsibility - are opening themselves up to large risks. Employers must take a proactive approach in changing the culture. Senior leadership should be visible and engaged with its employees on a regular basis to help create a safe environment with no fear of retaliation.
What policies and procedures can employers put into place to educate the workforce and create a culture of transparency?
Kelly: Employers should consider moving away from traditional education models that simply reiterate the mandates of a policy. Instead, conduct small session training that facilitates more meaningful discussion among colleagues and better information exchanges. Focus groups or roundtable style training that includes concept application to hypothetical situations can improve retention of key policies, encourage open dialogue, and facilitate better employee action.
Dorman: First is a visible commitment by employers– starting in the C suite– to effective anti-harassment policies and procedures, made credible by a sustained commitment of resources to support this commitment, including better and more frequent training.
What about employers who find themselves facing claims of harassment tied to violation of employment laws (Title VII, ADA, FLMA, etc.)? Are there proactive measures to take to mitigate these issues?
Dorman: The best defense is a good offense. Mitigate these issues by having good policies and procedures, training employees on them, and creating a workplace environment in which employees feel safe reporting harassment in the first instance. There can be a huge gap between workplace conduct that would be unacceptable in the typical workplace and workplace conduct that is “severe and pervasive” as that standard is interpreted by the courts. But incivility is a gateway drug for harassment, and employers should not hesitate to nip improper workplace conduct in the bud before it rises to the level of actionable harassment.
When harassment occurs or is reported in the workplace, what should an employer do first?
Martha: Once an episode of harassment has occurred, employees should feel safe about reporting it. Reporting policies should offer a measure of confidentiality and an assurance of non-retaliation. The keys when a claim is made are speed, objectivity and thoroughness. The faster an employer takes action, the better the outcome. Employers should interview the complainant to determine the basis of the allegations, assess the complainant’s credibility, and find out if there were other witnesses to the alleged misconduct. Is the complainant aware of other allegations of misconduct? Is she or he fearful for their personal safety? Other employees with relevant knowledge, other potential victims, and the alleged perpetrator need to be interviewed promptly as well. After completion of the interviews and the investigation, the investigator needs to assess the likelihood of the alleged acts having occurred and, if it is believed it did occur, whether or not the acts violate your workplace’s policy.
Dorman: Four of the most important things to do are: to (1) promptly (2) start an investigation led by a (3) well trained and (4) independent investigator. This is crucial to building credibility.
When conducting an investigation into a workplace harassment claim, what should employers be aware of?
Dorman: Common mistakes include tasking employees who are not properly trained, have divided loyalties, or are not seen as impartial by employees to handle the investigation. A bad investigation can actually make matters worse and may even prompt a lawsuit that could have otherwise been avoided.
Kelly: Document without editorial commentary. Include just the facts, plain and simple.
What is the value in employers reviewing workplace harassment policies and procedures in advance of a reported incident?
Dorman: Balch’s #MeToo Audit gives employers a chance to take a candid look at workplace harassment risks, including interviews with employees, a review of policies and procedures, and confidential recommendations for improving the workplace.
Kelly: Stale policies can breed problems, so ditch a generic policy and tailor it to the company’s workforce. A tailored policy has a better chance of being understood and followed by the workforce. Policy updating done correctly may deter bad actors and give the employer an opportunity to demonstrate the company’s commitment to enforcement, which protects the employer and its employees.
Martha: Every workplace should have a culture and infrastructure that addresses disruptive behavior. Creating this environment starts at the top. Programs to identify and avoid sexual harassment claims begin in the boardroom, are reinforced in the executive suite, and implemented through a strong partnership among legal and human resources. The #MeToo Audit provides employers with a program to review policies, talk to employees and review past harassment complaints. The value of the #MeToo Audit is in preventing litigation, erasing poor employee morale, and lowering the costs of bad publicity.
Join Kelly Pate and Martha Thompson at this year’s Labor & Employment Conference in Birmingham on September 27 – 28 as they share more insights about how employers should consider preparing for the #MeToo World.