As women speak out about sexual harassment in unprecedented numbers, employers need to get out in front of this issue by strengthening their preventive efforts.
That’s the general recommendation in the wake of the Harvey Weinstein scandal and the avalanche of sexual misconduct accusations involving other individuals in media, business, and politics.
Ryan P. Lessmann and Samia M. Kirmani, from Jackson Lewis, told Bloomberg BNA that while the focus right now might be on high profile cases, employers generally may see an uptick in employees raising harassment issues, even if these are not nearly as salacious as those being reported upon in the media.
To address the situation, employers can draw on a series of preventive measures contained in a report from the Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace.
Lessmann and Kirmani expanded on the task force’s suggestions in a recent webinar titled “Bolstering Your Preventive Practices to Meet the New Wave of Harassment Claims” and offered employers additional recommendations for tackling the persistent problem of sexual harassment.
A Movement Initiated by Victims
We’re seeing harassment and other forms of sexual misconduct dominate the discourse more than ever before, according to Kirmani. While the law surrounding sexual harassment hasn’t changed much, what has changed is the “sheer number of those who speak out,” she said.
Kirmani pointed specifically to the #metoo movement, powered by social media. This movement is creating a space where victims of sexual harassment are speaking out louder and to a larger audience.
So what is next in this #metoo movement? Kirmani and Lessmann predicted that we will see an evolution of the hashtag to “#IHeard, #ISaw, #IWitnessed.” Instead of only victims coming forward, they expect those who observe sexual harassment to speak out on behalf of others.
Additionally, future juries may view employers more skeptically when they argue that conduct was consensual. Lessmann told Bloomberg BNA that this may be because there is so much more awareness now, from both males and females.
According to Kirmani and Lessmann, employers can bolster existing preventive practices by following their four M’s: Model, Message, Manage, and Monitor.
Model Expected Behavior
An organization’s leaders must model expected behavior. It starts at the top with CEOs and upper management who need to align a “zero tolerance policy with zero tolerance reality.” If nothing is done when an executive harasses an employee, it will establish a negative workplace culture, and victims will feel there is no point in reporting any harassment.
Kirmani recommends revising executive employment agreements to include forfeiture of bonuses and/or termination if an executive violates sexual harassment policies. Employers could also include indemnification parameters within the agreement and require executives to have personal insurance to cover the costs of sexual harassment claims.
By tying accountability to compensation, such that executives face consequences for their own misconduct or for letting sexual harassment happen under their watch, employers will be putting teeth into their policies, Kirmani told Bloomberg Law.
The messaging employers put in place about sexual harassment must convey the conduct accepted and prohibited within the workplace. The two main aspects of messaging are the policy and the training.
Employers should conduct a review of their current policy to ensure it is robust and current. There should be wide dissemination of the policy, not just at initial hiring, but also annually. To underscore organizational commitment to the policy, its provisions should be reiterated by leadership through company wide emails and/or town hall-style meetings.
With respect to training, Kirmani said employers shouldn’t just focus on people managers; board members, top executives, and non-management employees should also receive training on sexual harassment. Everyone’s training should include examples of right and wrong conduct, workplace civility, complaint filing procedures, the consequences of sexual harassment, and the duty to report.
A somewhat newer trend is to provide training on “bystander intervention,” which the EEOC recommends as a way to “change social norms and empower [employees] to intervene with [coworkers] to prevent sexual harassment.”
Kirmani told Bloomberg BNA that while it is great to have training on what an employer should do after an allegation, it is also important to give employees tools in order to stop harassment in its tracks. This type of training also helps to generate discussion, since conversations on bystander intervention allow much more participation in a training session.
While everyone in the organization should receive the same core content, additional elements need to be covered in sexual harassment training for people managers and front line managers. For example, they need to be trained on their duty to act, appropriate responses to complaints and witnessed harassment, and their accountability after they become aware of harassment.
Manage Harassment Incidents
When it comes to managing actual incidents and complaints of sexual harassment, Lessmann describes a “Path to Ruin” and a “Path to Recovery.”
The path to recovery starts with a crisis plan, which is especially important if high-level executives are accused of sexual harassment. This crisis plan should do the following:
Additionally, employers should take real action, and it should be consistently applied. Employers shouldn’t make excuses for a top executive if they would fire a manager for the same behavior.
Lessmann warns that employers should be careful with public messaging. It isn’t normal to make public announcement, even though we are increasingly seeing that in the news. Lessmann told Bloomberg BNA that these announcements might lead to charges brought by the alleged harasser for defamation, invasion of privacy, and excessive publication in certain states.
Monitor the Workplace
Beyond implementing preventive measures, it’s important to measure and monitor their effectiveness. This requires “continuous self-evaluations” to find vulnerabilities.
Kirmani and Lessmann recommend that employers assess employee feedback, look at previous complaints filed to find trends, pay attention to websites such as glassdoor.com where employees post comments about their employment experiences, and conduct internal employee surveys.
By taking these steps, employers can prepare themselves to deal with the expected increase in sexual harassment complaints and prevent future harassment from occurring.
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