By Sindy Warren and Jennifer Gorman
What We Know Now:
Sexual harassment seems virtually ubiquitous, and it is as much about power as sex. That’s why we’ve seen so many “powerful” people taken down by sexual harassment allegations, and why so many victims have waited to come forward until they could find strength in numbers (#metoo). Donald Trump was elected President despite the Billy Bush video and numerous allegations of sexual harassment by former employees, Miss Teen USA contestants, and journalists. 20st Century Fox offered Bill O’Reilly a four-year contract extension worth $25 million a year even though it knew of at least six high-dollar settlements – including a $32 million payment to a former Fox News legal analyst.
As more victims of harassment have come forward, the accused harassers, their employers, business partners and investors are feeling the consequences of being reactive rather than proactive. Investigating and defending sexual harassment claims is expensive, both in terms of the hard costs of legal fees, third-party investors and public relations, and the soft costs of low morale and distracted employees.
Uber hired former U.S. attorney general Eric Holder to lead an investigation into claims of sexual harassment and discrimination that a former female engineer made public in a viral blog post. The blog described a chaotic work environment and an HR team that was deathly afraid of Kalanick and his tendency to berate and embarrass employees who complained. The investigation of more than 200 claims resulted in the firing of 20 employees. Investors demanded that CEO Travis Kalanick resign.
It is widely believed that The Weinstein Company will not survive co-founder Harvey’s egregious behavior, as more than 40 women have come forth will horrible accusations of rape and assault. Weinstein TV, movie and book deals have been cancelled and the company has been stripped of awards and recognitions. Amazon is facing criticism as it becomes apparent that the company was fully aware of the allegations against Roy Price. The costs of keeping on a powerful perpetrator ultimately outweigh any perceived benefit.
The seemingly daily stream of harassment-related headlines makes it clear – the investment into a healthy corporate culture that promotes appropriate behavior and encourages open dialogue is a much better bet. Companies that have solid anti-harassment and discrimination policies and practice those policies by training, investigating complaints, and taking appropriate action against violators are well-positioned to defend claims when they do occur.
One thing is for sure. We expect to see an increase in harassment claims as the public becomes more knowledgeable and less tolerant of employers who don’t protect employees from harassment and discrimination. Companies both large and small, across diverse industries, will be held accountable by claims filed with enforcement agencies such as the Equal Employment Opportunity Commission (EEOC) and the Ohio Civil Rights Commission (OCRC), as well as with federal and state courts.
We also expect to see higher settlement payments and some runaway jury verdicts. People are rightfully upset upon learning of systematic harassment and even abuse at the hands of the powerful. Be prepared to see juries take some of this anger out on employers who made a calculated decision to keep a high-level perpetrator on at the expense of a lower-level accuser.
What Employers Need to Do ASAP:
Be proactive in addressing the issue of workplace harassment. There is no better investment. If you wait until a complaint hits, you’re already way behind where you need to be to ensure a solid defense. What can you do to be proactive? Have a Harassment Prevention Plan in place and implement it with training and by ensuring that employees know how and where to voice a complaint. An effective plan has the following ingredients.
- A comprehensive anti-harassment policy that:
- Clearly articulates the organization’s commitment to a harassment-free workplace;
- Defines harassment broadly;
- Prohibits retaliation for complaining about potential harassment; and
- Lays out a clearly defined complaint procedure for employees to follow if they have concerns about potential harassment.
- Workplace harassment training for all employees, conducted annually or at least every other year. Leaders and managers should be trained separately, as they have unique obligations under the law. It is important for all employees know what is expected of them in terms of contributing to a harassment-free workplace, and what they should do if a harassment issue arises. We recommend in-person (as opposed to online) training that is interactive in nature and encourages employees to offer their own perspectives and ask questions.
- Readiness to conduct a prompt and thorough workplace investigation in the event allegations are made. Employer liability often hinges on whether the employer conducted an appropriate workplace investigation upon learning of allegations of harassing behavior. Who conducts the investigation is almost as important as how the investigation is conducted. The investigator should be well-trained, unbiased and perceived as independent. The investigation should involve, at a minimum, a comprehensive assessment of the allegations, interviews with relevant witnesses, a review of additional evidence (e.g. documentary or electronic), and findings of fact.
- Appropriate and consistent remedial action upon a finding of harassment. Discipline can range from termination of employment to one-on-one sensitivity training. The right step will depend on many factors, including the nature and severity of the allegations. Consistency is critical.
Who we are:
Warren & Associates helps employers prevent or promptly resolve workplace conflicts and inequities to minimize legal risks and optimize company performance. We conduct HR audits to assess compliance and risk, and we serve as an outside investigator of workplace claims.
Sindy Warren is considered a national expert in harassment prevention and remediation and was asked to testify before the EEOC’s Special Task Force on Addressing Harassment in the Workplace in 2015. Her written testimony can be found here.