#MeToo And You: Preventing And Investigating Sexual Harassment In The Workplace
By Susan Bassford Wilson, Constangy, Brooks, Smith & Prophete (St. Louis)
#MeToo — a viral hashtag that has become a rallying point for people denouncing sexual harassment and assault. If you’re wondering what you as an employer need to do to prevent and address sexual harassment at your company, read on!
The Best Offense Is A Good Defense
If you want to prevent sexual harassment, you first need to define it. Sexual harassment covers a wide variety of behaviors, from indecent exposure to sexual assault and from off-color jokes to groping. Most companies realize the importance of having a policy prohibiting discrimination and harassment on the basis of sex. But if you don’t have such a policy, then that is the first step you need to take, and there is no time like to present to take it.
If you have a policy, take a look at it. Does it define harassment and discrimination practically? Does it provide one or more ways to report any complaints? Does it prohibit retaliation against people who make a complaint or provide information used to investigate one?
Next, if you have a practical and legal policy, does your workforce know about it? You should train your employees on it. Repeatedly. With different sessions for employees and for management. The best policy will not help you if no one understands it.
Let’s say that you have a great policy, and your employees have been thoroughly trained on it. But what happens when Sara comes to you to say that she is being sexually harassed?
What Happens When You Receive A Complaint?
First, take all complaints seriously. The fact that Sara has complained six times in the past six months doesn’t mean this particular complaint is unfounded.
Second, investigate the complaint in accordance with your previously-prepared and consistently-applied plan and policy. A thoughtful framework not only keeps the investigation on track but it is also a helpful way to protect the company from future liability. Further, all investigators should be well trained, detail-oriented and objective. Anyone who is accused of improper conduct, who reports to the alleged harasser directly or indirectly or who is a material fact witness should not conduct the investigation.
Third, execute your plan. Interview the accused and the accuser, as well as any witnesses either person identifies. Get as many details as possible regarding who, what, when, where and how. Document everything. Asking everyone to write and sign a statement is usually a good idea. Keep in mind that we live in a digital world, so text messages or iPhone pictures may be relevant.
Once the interviews are complete and all the evidence has been reviewed, you must decide whether the alleged misconduct actually occurred. This stage is often the most challenging for a company, and consulting with legal counsel may be particularly helpful. You don’t necessarily have to conclude that nothing bad happened just because there are no witnesses, but you also aren’t required to accept unsubstantiated allegations.
Once you have reached a conclusion regarding what happened, you need to decide what action to take. If you determine that harassment occurred, you must decide what corrective action to take against the accused. It should be prompt and reasonably calculated to fix the problem. What is appropriate depends on a number of factors, including the severity and duration of the conduct and what actions the company took in similar situations. Remember, consistency is invaluable.
Finally, don’t get mad, and don’t get even. Even if an allegation is baseless and the company conducted a flawless investigation, it can still be liable for retaliation. Thus, follow up with the accuser to ensure there is no further misconduct or retaliation.
Workplace Tips
If your employees need some help grasping acceptable workplace behavior, tell them to follow the rules they learned on the playground. Don’t touch other people without permission. “No” really does mean no. Silence is not consent. Don’t threaten other people to get them to do something they don’t want to do. Keep your clothes on and fully fastened at work. If you see someone else being treated badly, tell a responsible adult (i.e. the boss, human resources, an attorney). In summary, treat your co-workers the way you would want to be treated and the way you would want your spouse or child to be treated.
About The Author
Susan Bassford Wilson is a partner at Constangy, Brooks, Smith & Prophete (St. Louis). She may be contacted at swilson@constangy.com.
This column is made available by the lawyer and publisher for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice or to establish an attorney-client relationship. This column should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.