This installment of "HR Legal Briefing" is written by David W. Garland, a Member of the Firm and Chair of Epstein Becker Green’s National Employment, Labor & Workforce Management Steering Committee. Garland is frequently retained in matters involving clients’ most senior executives and in high-profile, high-stakes and highly sensitive cases. He can be reached at [email protected].
Our earlier columns have focused on the risks to a company where allegations of sex harassment against a founder or other key players have made headlines. We’ve talked in general terms about the need for the C-suite to implement an effective HR strategy – and the need for the board to embrace a culture where HR plays a major role in company leadership. Now, we'll begin to drill down on specific steps that should be taken to minimize the risk that an employer finds itself in the headlines for the wrong reasons.
First and foremost, your anti-harassment policy must be backed up with action. It’s not enough to have a policy that says the right things. The company must do the right things – and create a culture of compliance. That means when a harassment complaint is made, it must be promptly investigated by experienced independent investigators (either employed by the company or brought in from the outside for the sole purpose of investigating the complaint). You don’t want to hear that a complaint wasn’t made because the employee felt that the complaint would be swept under the rug, nothing would happen or the company would retaliate against the complainant.
The victim must be promptly interviewed to get a thorough understanding of the allegations: What happened? When did it happen? Who witnessed it? What relevant documents — including e-mails, texts, social media posts and instant messaging — can be recovered and reviewed?
Communication throughout this process is also key. The complaint cannot be left in the dark to surmise what is — or isn’t — happening. While the employer should not provide the details of the investigation and any specific disciplinary action against other employees, communication with the complainant should include the status of the investigation and its outcome in general terms.
As part of creating the right culture, company leadership must make clear in words and deeds that creating a safe work environment for its employees is paramount. Frequently, in trying to achieve that goal, leadership uses the term “zero tolerance.” That terminology should be avoided — however counterintuitive that sounds — because some individuals will not make a complaint because they don’t want the accused to be terminated. Rather, the employer should aim for proportionate discipline; not every instance of alleged harassment requires the immediate termination of the accused.
Training is also important – and not just giving lip service to it. Care must be taken to ensure that the training is tailored to the particular employee population. That means not only providing the proper content but also presenting the training to enhance its effectiveness. The training should include specific examples of what is unacceptable behavior and how to report violations of the company’s policy. It must be provided periodically (and more jurisdictions are mandating such training in response to the #MeToo movement). Managers must be educated about their responsibility should they witness or learn about alleged harassment.
For senior management with employment contracts, the definition of “cause” for termination should include violation of the company’s policy against harassment. As legislatures enact prohibitions against mandatory arbitration of sex harassment claims or non-disclosure agreements involving the settlement of harassment claims, contractual language is likely to be more effective in preventing harassment in the workplace.
I have yet to meet the alleged harasser who confessed that he thought he could get away with harassment because he knew the victim had a pre-dispute arbitration agreement. But an alleged harasser is much more likely to abide by the company’s policy if he knows that he risks losing a lucrative pay day should he be terminated for “cause.”
In Part II, we'll continue to discuss what the C-suite should be doing in this area.