Sexual harassment—the subject has exploded in recent weeks as people from all walks have spoken up about a menacing workplace problem. Even though antiharassment efforts are a priority in human resources circles, recent revelations about the actions of some high-profile executives are likely to cause employers to ask the question, “Are we doing enough?” 
And with legions of people, famous and not, taking to social media to say, “me too,” employers are smart to take a look at not just their policies but also their culture.
Controversy heated up when a number of prominent actresses came forward with complaints against Hollywood mogul Harvey Weinstein. The board of directors of The Weinstein Company, including Harvey Weinstein’s brother, eventually fired him, but news reports revealed allegations going back a number of years that were known to people inside and outside the company. Over the years, he had even paid to settle several sexual harassment claims without the company taking action.
More news followed implicating high-powered executives at other companies and in other fields. Roy Price, the executive at Amazon overseeing Amazon Studios, was out after accusations against him became public. Plus, top executives at Fidelity Investments were let go after more allegations of sexual harassment.
But bad behavior isn’t confined to the powerful few at big-name companies. Sexual harassment is unlawful under the Civil Rights Act of 1964, which prohibits discrimination and harassment based on sex as well as race, color, national origin, and religion. So for more than 50 years, employers have been counseled to develop and enforce policies prohibiting sexual harassment at all levels.
Walking a tightrope
In spite of policies against harassment, the problem persists and it’s especially challenging when the perpetrator is a powerful executive.
“One of the issues the Harvey Weinstein scandal highlights is the difficulty employers face when the allegations are made against an employer’s top executive,” Lisa Berg, an attorney with Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., in Miami, Florida, says. In such cases, the top official in the human resources, compliance, or legal department may be uncomfortable conducting an investigation because he or she reports to the executive under investigation.
“That’s a difficult tightrope to walk,” Berg says, adding that in such cases the employer may be better off retaining an independent third party to investigate or HR can be empowered to report to the board of directors.
Berg calls the Weinstein scandal a wakeup call to employers. Not only do they need a well-defined antiharassment policy, a complaint procedure with various avenues for complaining, and a provision ensuring employees that they won’t suffer retaliation if they make complaints, employers also need measures in place to address allegations against top executives. Employers “cannot bury their heads in the sand when allegations are made against a CEO or owner of a large company,” she says. She also emphasizes the importance of training for top decision-makers on “proper oversight and how to address these issues.”
“As the Weinstein case exemplifies, victims of harassment often do not come forward for fear of retaliation,” Berg says. “So employers must ensure that when they are conducting training, they stress that the company’s policy prohibits retaliation against individuals who come forward and raise concerns, even if those concerns involve the CEO of the company.”
Dealing with #metoo
The controversy sparked a campaign on social media encouraging people experiencing harassment to post their feelings using #metoo. All the attention has likely caused discussions about sexual harassment in a number of workplaces, meaning HR needs to assure employees that they’re safe in discussing harassment, discrimination, and retaliation concerns, Lauren E.M. Russell, an attorney with Young Conaway Stargatt & Taylor, LLP in Wilmington, Delaware, says. But graphic language and discussions of sexual issues are “otherwise not workplace appropriate.”
“Employers will need to strike a careful balance between making sure that employees feel heard if they are inspired to come forward with work-related issues, while not creating a breeding ground for new issues of harassment or discrimination by making the workplace an open forum for discussion of sexual relations,” Russell says.
As with the case of Weinstein, sometimes there are whispers and rumors of harassment even though nothing concrete is officially reported. Russell reminds employers that whispers are enough to put an employer on notice of sexual—or any other type—of harassment.
“A good antihiarssment policy should make clear that employees are required to report workplace harassment so that it can be investigated and stopped,” Russell says. When HR hears of rumors, possible witnesses and victims should be interviewed, but care must be taken.
“You should never threaten a prospective victim or witness, but it should be made clear to them that the only way to stop this behavior is to come forward and stand up,” Russell says. “At the end of the day, we can’t make employees talk. And if there is a culture of silence and everyone refuses to speak out, there’s not much HR can do” beyond carefully documenting the investigation, including noting who was interviewed, the fact that they denied being witness to any misconduct, and would not produce other names.
Employer response
Russell says harassment prevention needs to be a year-round focus, not just “an inspiration every time there’s a story of misconduct in the news.” She says regular training is needed, preferably by an outsider because “these are the individuals who are most likely to get the attention of your prospective offenders.”
Russell advises making training focus on real-life issues instead of being a recitation of cases and definitions for legal terms. Also, HR should ensure there is buy-in from the top. “A strong statement from the company owner, in person, by email, or otherwise goes a long way toward reinforcing a company’s no-tolerance policy for harassment.”
When an employer has been put on notice that harassment may have occurred, an investigation should be started immediately. “It should be detailed, thorough, and carefully documented,” Russell says. Also, while the investigation in ongoing, the alleged victim and harasser should be separated whenever possible. If separation isn’t possible, the employer should consider placing the alleged harasser on paid leave.
If the alleged harasser is in control of the business “such that there are questions of the company’s ability to conduct a truly independent investigation,” Russell suggests hiring an outside expert to conduct the investigation. If an investigation determines that a harassment allegation is true, “the best—and only—response” is swift action to correct the infraction, Russell says.
Need to learn more? Sexual harassment is just one sign of a breakdown in company culture. There’s also bullying, racial discrimination, hostile work environment, and the list goes on. When the workplace culture perpetuates these types of unlawful activities under Title VII of the Civil Rights Act of 1964 or other laws, employers are at extreme risk of costly lawsuits—not to mention irreparable damage to the company’s reputation and brand, employee morale, and other negative consequences. Employment law attorney Mark Schickman will present “Culture Club: The Link Between Workplace Culture and Workplace Harassment Claims” at the 22nd Advanced Employment Issues Symposium in Las Vegas on November 17. This session will examine recent cases illustrating the ways in which aggressive business practices may foster a culture that breeds harassment claims, how to evaluate whether company leaders’ messages and tone aligns with your efforts to maintain a harassment-free culture, and more. For more information on AEIS, click here.