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Immediate Strategies for Responding to the #MeToo Movement and Harassment in the Workplace
As a result of troubling personal accounts of sexual harassment that have permeated coverage on national media outlets and our social media accounts during the past few months, employers may appropriately question whether they do enough to prevent sexual harassment in the workplace. To help employers address this question, and respond to the acute awareness employees now have to the problem of sexual harassment, we discuss the basic, must-have tools for employers to prevent sexual harassment. For employers that have already adopted these basic tools, we recommend implementing five strategies to improve existing policies and practices and assure employees that complaints of sexual harassment will be addressed swiftly and appropriately. Although news stories have focused on employers that have almost exclusively terminated employees who harassed co-workers, employers should assess how to best respond after concluding an investigation that revealed inappropriate conduct. We provide three recommendations to help determine the appropriate discipline.
 
The Basics
 
Recent news has illustrated some employees do not know how to behave in the workplace, and many employees do not know how to report inappropriate behavior or are uncertain about the consequences of making a complaint.
 
Every employer should:
  1. adopt a clear anti-harassment policy that includes multiple avenues for making complaints;
  2. regularly train its employees on the policy; and
  3. vigorously follow and enforce the policy.
There is simply no good reason for an employer to fail to adopt these policies and practices. According to James Gruber, author of The Impact of Male Work Environments and Organizational Policies on Women’s Experiences of Sexual Harassment, employees in workplaces without policies report the highest levels of harassment.  Ann Juliano & Stewart J. Schwab, authors of The Sweep of Sexual Harassment Cases, state that employers without anti-harassment policies more often than not lose sexual harassment lawsuits. But those are only the basics. After ensuring policies and practices are consistent with the EEOC's recommendations, there is still more an employer should do to prevent harassment.
 
Five Strategies for Doing More
 
The #MeToo movement was not about simply documenting, communicating, and enforcing an anti-harassment policy. The more resounding message is that employees subjected to harassment must be encouraged to report that harassment and be supported when they do. The majority of harassment goes unreported. Unfortunately, an employee's perception of how his or her employer responds to complaints of harassment may be largely unrelated to how the employer actually responds to harassment complaints. Employees may feel that, if an employer did not take his or her complaint (or his cor her o-worker's complaint) concerning hours, wages, or other working conditions seriously, then the employer is unlikely to take any complaints seriously, including harassment complaints. To prevent harassment, employers must promote a culture in which employees feel empowered to voice their complaints. Greater transparency also will deter employees from behaving inappropriately because they will know that they cannot escape consequences for their inappropriate conduct.
 
For those employers who have adopted the essential policies and practices regarding harassment and are eager to create a workplace culture in which employees feel comfortable raising concerns about their work environment, we recommend the following:
  1. Audit complaint channels with a review of past complaints or a simulated test. While many employers have adopted employee complaint hotlines and other avenues for harassment complaints, many do not use them effectively. Often, these avenues gather incomplete information. For example, while hotlines may stress anonymity, that same anonymity forecloses an employer's ability to follow up with a complainant to ensure it has addressed the complainant's concerns. We recommend employers test and audit the effectiveness of the avenues they have established to process harassment complaints and assess what changes can be made to improve their effectiveness.
  2. Conduct an employee survey to assess the extent to which harassment is a problem in the organization and whether employees feel encouraged to report harassment. Asking questions about whether employees are comfortable reporting other problems in the workplace, such as violations of other company policies or ethics violations, also will help employers gain a better understanding of whether the workplace culture encourages transparency.
  3. Critically assess whether the anti-harassment and anti-discrimination training is stale or ineffective. Now would be an appropriate time to modernize training and ensure it relates to a particular workplace environment.
  4. Encourage more reporting of complaints to supervisors by not rewarding supervisors for having the fewest complaints. The EEOC has found that, when employers reward supervisors with the fewest number of complaints, it has the counterproductive effect of supervisors suppressing the filing of complaints. If employees are complaining to their supervisors, then that means employees have faith their employer will respond appropriately. Supervisors should be rewarded for developing trust with employees.
  5. Assess whether there is a disparate number of men in management positions as compared to women. Research has shown that employers with more women in management have less sexual harassment in the workplace. An audit of the ratio of women to men in management positions may also reveal other issues, including disparities in hiring, promotion, and pay, which should be resolved immediately.
 
What is the Appropriate Punishment?
 
The news primarily has focused on alleged harassers, often high-profile ones, who are quickly separated from employment following a complaint. But even the EEOC has cautioned against a zero-tolerance approach for anti-harassment violations. Not only does this approach create litigation risk from the discharged employee, but it also may deter complaints.
 
According to the EEOC, "[a]ccountability requires that discipline for harassment be proportionate to the offensiveness of the conduct." In other words, employers should ensure that, where a violation of the employer's anti-harassment policy is found to have occurred, discipline is prompt and proportionate to the behavior at issue and the severity of the violation. Employers also must be consistent in how they discipline employees for violations of an anti-harassment policy. Issues may arise, for instance, if an employer frequently suspends younger employees for violations of its anti-harassment policy, but discharges employees over the age of 40 for similar violations.
 
Researchers also recommend employers implement discipline that is proportional to inappropriate behavior because, "[i]f the penalty is someone's always going to get fired, lots of targets won't come forward." Employees subject to inappropriate behavior may not want to see someone get fired. Often, they just want the behavior to stop. If employees know a co-worker's sexist joke will result in a warning – instead of the termination of the co-worker's employment – employees may be more likely to complain about the sexist joke. This encourages employees to report minor inappropriate behavior, which, unless promptly deterred, frequently results in escalating inappropriate behaviors.
 
To develop consistent policies and procedures that consider the specific harassing conduct identified through a complaint and investigation, we recommend organizations:
 
  1. Audit investigations into sexual harassment complaints brought forward in the past two years to proactively assess litigation exposure, identify possible improvements for investigating future harassment complaints, and ensure the disciplinary action that resulted from the investigations was consistent. For example, we can look at documentation from previous investigations and critically (and confidentially) assess whether the right people were interviewed and asked the right questions. An audit may also reveal inconsistencies in discipline that can be mitigated going forward with a policy change. (If there is no documentation from any previous investigations, then we should discuss document retention policies for investigations.)
  2. Define general guidelines for disciplining employees who have engaged in inappropriate behavior. For example, sexual assault or demands for sexual favors in exchange for a promotion should result in the termination of employment. A sexist joke, without any previous infractions, may warrant a warning. The guidelines should be consistent with how  employees previously have been disciplined for violating an anti-harassment policy and sufficiently flexible to ensure that discipline is proportional to the specific inappropriate behavior.
  3. Revise the anti-harassment policy to make clear that violations of the policy will result in discipline that is proportional to the conduct at issue. While the anti-harassment policy should make clear that the employer may terminate an employee for violating the policy, employers should consider ways to integrate proportionality into the policy while maintaining flexibility depending on the specific behaviors and other relevant circumstances (e.g., past behavior).
 
Of course, if you have any questions about how to implement any of our recommendations, please contact us.
 
Labor & Employment Law Sarah E. Kowalkowski
304.720.4096
skowalkowski@spilmanlaw.com Mitchell J. Rhein
304.340.3889
mrhein@spilmanlaw.com