Vedder Thinking | Articles "Oops, He (or She) Did It Again! Implementing a Best-In-Class Harassment-Free Workplace Program to Help Your Company Stay Out of the Headlines" in Employee Relations Law Journal
*This article was originally printed in Vedder Price's June 2017 Labor & Employment Law Update and has been extended and reprinted with permission from the Winter 2017 issue of the Employee Relations Law Journal. The extended version includes key considerations and best practices for conducting an investigation and considerations regarding confidentiality.
Sex sells. And draws clicks, too, on Facebook, Twitter or the countless other sites people visit to get their news. Whether it was the salacious details surrounding Anita Hill’s allegations about Clarence Thomas decades ago or the more recent accusations that cost Bill O’Reilly his Fox News gig, it does not take much to get people talking about sexual misconduct in the workplace. Much has already been written about the risks of coddling superstar employees and over-reliance on confidentiality provisions in settlement agreements that may not be as airtight as some think. This article, however, is intended simply as a refresher of the basic, nuts-and-bolts aspects of an effective harassment prevention program. While faithful adoption of these suggestions is not a magic talisman for warding off all claims, regular and reliable adherence to these steps will put employers in a better position to defend and possibly reduce the number of claims.
Policies and Procedures. It goes without saying that employers should regularly review and update their policies and procedures to ensure compliance with the latest laws and trends. They should be written in words that employees can readily understand. Include the harassment policy in the handbook, post copies in the workplace and make it available on the company’s intranet so employees have access to it at all times. (Some employers even reprint their basic anti-harassment policy on every employee’s pay stub.) Consider the languages commonly spoken by employees and whether there are segments of the workforce that do not read or understand English. If so, invest in translation services and confirm that employees understand the option to have the policy translated for them, if needed. The harassment policy should provide multiple avenues of complaint, ideally including Human Resources, a toll-free telephone number and online. Regardless of the avenues provided, giving employees the ability to make complaints anonymously can limit the ability of claimants to later argue they failed to complain out of a fear of retaliation.
Management and Employee Training. Whenever possible, conduct mandatory (separate) training sessions for employees and management. Employees should hear how seriously the company takes workplace harassment, understand what sort of behaviors are prohibited and be told how to lodge a complaint, as well as what to expect once a complaint is received. It is important to dispel myths and emphasize the company’s commitment to preventing both harassment and retaliation. Whether the company uses internal trainers or a third party, many clients prefer to involve attorneys (either internal or external) when training managers. Lawyers can credibly describe the legal risks for the organization when managers fail to adequately respond to harassment situations, as well as emphasize the potential for personal liability, which can be particularly persuasive. Whenever possible, senior leaders should attend these sessions, affirming the company’s commitment to a harassment-free workplace. While video/online training may be the only feasible option for many employers, live sessions give employees and managers alike the opportunity to discuss nuances, ask questions and raise concerns. Quite often, issues will surface during or immediately after management training, providing the opportunity to take proactive steps. Human Resources should doggedly track attendance to ensure that every employee completes the training in a timely manner and to ensure that sign-in sheets are used for live sessions. Last but not least, the training should include a review of the company’s policy, emphasizing that the company prohibits all types of harassment. The trainer(s) should be sure to include and discuss case studies so the attendees get a clear and practical picture of what is not acceptable behavior and how, as managers, they must respond. Employees should also be encouraged to speak up when they witness inappropriate behavior, and to feel empowered to address situations in the workplace directly that make them uncomfortable.
Investigations. There are a host of considerations regarding how to conduct an effective investigation – enough to justify an entire article. (Check this space in the future.) Every investigation should be prompt and thorough, leaving no stone unturned whenever a complaint is received. Keep in mind that even if the employee is a chronic complainer, some form of an investigation should be conducted in response to every complaint. Ideally, one or more individuals should be trained in how to conduct investigations and will have actually done them. Senior HR leadership should maintain oversight over the matter to ensure that it is being handled appropriately. Developing and adopting internal investigation protocols, with recommended timelines, is another best practice to consider. If the company does not have a qualified investigator on staff or if that person is fully occupied, consider retaining a professional investigator or outside attorney. Once the investigation is completed, it is essential that someone close the loop with the complaining employee. While that need not include disclosing the specific action taken against the accused, the complainant should be assured that appropriate steps have or will be taken. Encourage the complainant to immediately let the company know if the original issue recurs or they believe that they are being retaliated against. To the extent that the investigation determines that policies were violated, it is essential that the company take appropriate remedial action against the offender. Zero tolerance is an important yet misunderstood concept. While action should indeed be taken whenever a violation occurs, that does not mean termination is always the appropriate action. And employers should make sure not to “punish” anyone who made a good faith report, even if found to be unsupported. (And be mindful of subtle ways in which a complainant may feel ostracized for having come forward.) Every situation is unique and requires a careful and thoughtful response.
If you have any questions about this article or wish to discuss how your company can enhance its harassment-free workplace compliance efforts, please contact Amy L. Bess +1 (202) 312 3361, Heather M. Sager +1 (415) 749 9510 or any Vedder Price attorney with whom you have worked.
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