While in-house lawyers are always concerned about sexual harassment claims, the last year or so has provided a loud wake-up call regarding the highly negative impact of such claims on employees and on the company involved.  While women can certainly engage in sexual harassment, the headlines over the last year – and recently with CBS CEO Les Moonves – are littered with deplorable accounts of men using their power to take advantage of female employees.  These headlines follow a sea-change event where sexually-abused and harassed woman are refusing to suffer in silence.  Instead, beginning with the downfall of movie producer Harvey Weinstein in late 2017, they are coming forward in waves with their stories, bringing with them a glaring hot spotlight on the darkest corners of corporate offices all over the world.  This is the #MeToo era.

While the news headlines tend to focus on the misdeeds of the rich and famous, for in-house lawyers the concern is local – but just as important.  The #MeToo movement provides added urgency for in-house lawyers to make sure their company is doing the things necessary to prevent disaster and ensure a safe workplace for women and men.  As usual, dealing with sexual harassment claims in the #MeToo era comes down to getting the basics right.  For many companies, it is easy to trace the devastating impact of a particularly damaging sexual harassment claim to two problems: failure to properly investigate and failure to take appropriate action.  This edition of “Ten Things” discusses the key things you should be doing to both prevent sexual harassment from occurring and, if it does, properly investigating and resolving such claims:

1.   What is sexual harassment?  The first thing you must understand as in-house counsel is what exactly constitutes sexual harassment.  Sexual harassment takes two forms: a) creating a hostile work environment; and b) quid pro quo (e.g., demanding sex in exchange for a promotion or raise). I think the definition provided by the EEOC is helpful:

“It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.”

The more difficult task for in-house lawyers is applying the definition to actual behavior in the workplace.  Here is just a partial list of activities that can – under the right circumstances – constitute sexual harassment (click here for the full list):

• Unwanted deliberate touching, leaning over, cornering, or pinching.
• Unwanted letters, emails, telephone calls, or materials of a sexual nature.
• Looking a person up and down.
• Sexually suggestive signals.
• Neck massage.
• Giving personal gifts.
• Personal questions about social or sexual life.

2.  Have the right policies in place.  The starting point in preventing sexual harassment claims is ensuring the company has the right policies in place.  As you look at the partial list of behaviors above, you can see the challenge to drafting a policy that covers every situation.  Click here and here for some sexual harassment policy templates.  Regardless, any policies (or Codes of Conduct) must meet three core criteria:

• They should be easy to find and read.  Make sure the policy is located in a place where employees can easily find it.  The employee handbook is a good place to start.  Likewise, a separate place on the company’s internal website is even better.  Next, lose the legal jargon and the need to write pages and pages of text.  A policy that is short and that quickly gets to a clear and simple description of what is unacceptable is much more likely to be read and understood.  The policies should include clear instructions on how to file a claim and the process the company will undertake to investigate claims.  Your policy should be translated for locations outside the home country or if there are employees who may struggle with English.
• Zero tolerance.  Your policy should start with a statement that there is zero tolerance at the company for sexual harassment.  This isn’t the place for shades of gray.  The issue is black and white.  Write it that way.  And, be sure to note that there will be no retaliation against those bringing claims forward.  Your goal is to encourage people to come forward, not to stick your head in the sand.
• Cover gateway issues.  Sexual harassment is not the only problem you need to cover.  You should also get at the “gateway” problems and cover bullying, harassment based on race or other factors, and lack of civility generally.  Toleration for these types of behaviors almost always opens the gate for employees to feel that even worse behavior, i.e., sexual harassment, is somehow “okay.”

Many companies require that their employee sign and acknowledge they have read and understand the policy. This is a good idea.  Your policies should be updated yearly.  Go ahead and calendar a day once a year to sit down with your friends in HR and do just this.

3.  Hire the right people.  Sounds a little odd, right?  But, one way to prevent sexual harassment is to hire the right people, both in terms of employees and management.  Start with the obvious, insist on background checks on all employees.  Make sure you use a reputable company that can dig deep enough to find problems related to incidents involving harassment or violent crimes.  Similarly, check references and remember that public social media posts are another way to determine the character of potential employees.  Hire people that fit into your culture.   When you promote employees to a manager role, you have their full attention.  Be sure to use this opportunity to train them on their responsibilities regarding harassment and ensure that they are willing to take that responsibility seriously.  And think long and hard about promoting someone with a history of complaints against them (better yet, ask yourself why they are still employed at the company).

4.  Training.   Having great policies is important, but they won’t matter at all if you do not have a proper training program in place.  Many states mandate sexual harassment training, including New York and California. But even if your state does not mandate training, it’s hard to envision the effective prevention of sexual harassment without a training program for all employees (including upper management).   Unfortunately, one study shows that 20% of companies lack a sexual harassment training program.  That is especially shocking because the law gives protection to corporations that conduct sexual harassment prevention training.  So, take the lead in ensuring such training is provided by your company.  Training comes in three parts:

• First, you need to train your employees and management.  Everyone should understand what constitutes sexual harassment and what to do if there is a problem – especially how to file a claim.  Everyone should be given a clear warning that there should be no retaliation against anyone bringing a good faith claim.  Of particular importance is explaining the policy to new hires at orientation and ensuring all managers understand what they need to do if they receive a complaint – and that they are not to investigate claims themselves.  All claims should be forwarded to HR for a proper investigation.
• Secondly, don’t forget to provide training for the investigators, i.e., those professionals in HR and Legal who will be involved in investigating any sexual harassment claim.  No one “naturally” knows what to do when investigating such a claim.  And doing the wrong things during an investigation can make the problems worse.  Much worse.
• Third, most training focuses on the harasser and the victim.  While important, take the extra step to train the bystanders to take action when they have seen harassment take place.  This includes what they can do in the moment to stop harassment, or how best to report what they have seen.

Your training program should be customized for your company and include a mix of live training, online training, video, short quizzes, and most importantly, examples of what constitutes sexual harassment.

5.  Have a great HR department.  Legal’s partner in preventing and investigating sexual harassment is the human resources department.  If the company is serious about preventing sexual harassment and investigating complaints, then HR must be a strong department with highly trained persons both on the prevention side of the equation and the investigation side.  The latter is extremely important because some of the biggest issues arising out of the #MeToo era involve failure to properly investigate claims, or, even if properly investigated, lack of backbone to do what needs to be done, especially when the accused is a high-powered executive at the company.  Gone are the days when HR could take its time investigating claims while trying to make it “all work out.” This usually means the employee is either being silenced or moved to a different part of the company.  Today’s HR professionals need to be fast and deadly, at least when it comes to ensuring that it is the harasser who pays the price, not the victim.  The partnership between HR and the legal department is one of the most important in the entire company.  Advocate for the HR department to ensure they have the budget and personnel to operate an effective sexual harassment program.  And partner with your HR team to deal with this issue and to jointly push forward any necessary reforms.

6.  Make reporting problems easy.  As sexual harassment complaints gain more publicity in the #MeToo era, one common problem often raised by victims was that they did not know how to file a complaint at their company.  That’s shocking.  The bedrock of any sexual harassment policy must be ease of reporting issues.  While no in-house lawyer wants to deal with a sexual harassment complaint, it is far worse to have a culture where problems are not reported.  Such a culture means that the problems will fester and then become a far worse issue to deal with when everything comes to light in a lawsuit or negative news story.  To prevent this, you need to do the following:

• Encourage employees to report sexual harassment claims.  Ensure there are regular communications from HR or the legal department to the employee base noting your company’s policies, that the company wants all issues reported, and setting out the process to raise a complaint.
• Set up an easy process to make complaints.  At a minimum, you need an email address that is monitored for complaints.  You should also set up an anonymous hotline.  And, all employees should know who to go to if they have an issue, e.g., their manager, HR, or someone out of their chain of command if their manager is the problem.  The larger the group of trained people to whom complaints can be made the better.
• Ensure that there is no retaliation for bringing forward a good-faith complaint.  Employees need to feel comfortable that they can bring a complaint and not face retaliation.  Non-retaliation should be a key part of your policies and training programs, and it should be emphasized any communication with the employee-base about sexual harassment.  Not only should the company say, but it must also mean it.  That is where the legal department can get involved, working with HR to ensure that any whiff of retaliation is dealt with swiftly and completely.  Of course, a complaint brought in bad faith or maliciously must be dealt with appropriately as well.

7.  Conduct proper and timely investigations.  Encouraging your employees to raise complaints is important, but so is ensuring that the company promptly and properly investigates all claims.  Yet another place where the legal department can add value to the company.  Here are the core components of a proper investigation:

• Utilize well-trained investigators (including external if circumstances warrant).
• Document
• Determine if immediate action is needed to ensure the safety of the complaining employee.
• Interview everyone involved and ask them if there is anyone else you should also interview.
• Get facts from witnesses, not opinions.
• Collect any relevant documents referenced by any witness.
• Look for facts and documents that could support the complaint, or that could negate the complaint.
• Keep excellent records of every investigation.
• Set a timetable to promptly complete the investigation but accept that flexibility may be needed as facts develop.
• No pre-conceived notions about the investigation before you start. Keeping an open mind and not prejudging guilt or innocence is the hallmark of a proper investigation.
• Prepare a written report of the findings and conclusions.
• Determine the appropriate action to take based on, among other things, the severity of the conduct, whether the accused has been the subject of prior complaints, and whether the action will stop the harassment.
• Remember that much of the investigation is likely discoverable. Ensure that your investigator understands the difference and the implications.  And, of course, to the extent the legal department is involved, be sure you understand how the attorney-client privilege works and that you properly label privileged documents.

8.  Report the findings.  The credibility of your sexual harassment process hinges in large part on employees believing that their complaints are taken seriously by management.  Likewise, those accused want assurance that the investigation will be thorough and fair, and not predetermined.  When a complaint is made, meet separately with both parties.  Start with informing the complaining party that the company is committed to enforcing its sexual harassment policy as well as to conducting a thorough and proper investigation. Assure the accused that the investigation will be balanced and fair, and they will have a chance to give their side of events.    Let both know that you will do your best to protect their privacy and you will limit the amount of information released during the investigation to the minimum needed to complete the task Critically, inform both of the company’s policy of no retaliation.  After the factual investigation is complete and decisions made based on those facts, you need to report back to both the results of the investigation.  This means scheduling time with both (again, separately) to sit down and walk through what you found and what’s next, including any discipline.  If the complaint was not substantiated, report that to both (with a reminder that any retaliation will be met with severe consequences).  If the complaint is valid, explain what happens next and be sure to follow up with the complaining party on a regular basis to ensure that the harassment has stopped.

9.  Be consistent – every case and everyone treated the same.  Another common problem regarding sexual harassment investigations is the sense that not everyone is treated the same and that those employees who are more “important” can and will get away with things that other employees cannot.  Likewise, there are often problems with the company’s culture all-around creating a “boys club” mentality that makes those not in the club feel nothing will improve, often to the point of good employees moving on.  While this has begun to change in the #MeToo era, you can greatly improve things at your company by simply being consistent from start to finish in your sexual harassment investigations and enforcement.  If employees believe that everyone is treated the same they will be far more likely to come forward with issues, and they will be equally likely to accept the results of the investigation and any discipline handed out.  Consistency consists of three key parts: a) start investigations with standard templates, e.g., witness statements, findings, discipline, etc.  When there is a universal look and feel to the documents, it is harder for someone to claim their investigation was handled differently than others; b) ensure consistent outcomes for similar acts.  Discipline should be uniformly applied, and similar bad acts should be treated similarly regardless of “who” is involved.  The ability to point to similar outcomes for the same type of offense will protect the integrity of your process; and c) work toward consistent timelines.  The amount of time it takes to investigate a claim should be consistently the same for similar cases.  Again, consistency equals credibility, and that applies as much to the timing of investigations as it does to the outcomes and standard documents.

10.  Make it an issue for the Board of Directors.  You know who cares about sexual harassment claims?  The Board of Directors does.  Anything that can destroy shareholder value, limit the company’s ability to hire good employees or cause employees to leave, hurt the morale and productivity of the current employees, damage the brand, start a social media wildfire, or cause customers to go elsewhere has the attention of the Board.  Take advantage of this, especially now that #MeToo has raised the profile of the problem to new heights.  Preventing sexual harassment claims takes more than policies, it takes the right culture, especially any culture that allows the “boys club” atmosphere that has landed so many companies in the news.  All corporate culture starts at the top.  That sounds cliched but it’s true. Which is why it is important to make regular reports to the Board of Directors about your sexual harassment program and policies, the claims brought forward, resolution of those claims, and your plans for improvements.  Likewise, if there is a serious claim brought forward involving an executive of the company, the Board needs to know right away (so ensure there is a process in place to alert the Board of such developments).  Additionally, invite the Board to take the company’s sexual harassment training so they can see first-hand how you are dealing with the issue (and they may have good ideas for improvement given their backgrounds at other companies).  The Board sets the tone for the company, especially the executive team.  The executive team’s conduct influences the conduct of the employee base.  If there is zero tolerance at the top, the likelihood of incidents goes down.  Not to zero, but it’s not Animal House either.

*****

While this post is U.S.-focused, the basic principles apply almost anywhere.  And, I realize that not all companies have the resources to do all of the above.  But, the #MeToo movement has brought us to a significant moment with respect to how companies deal with sexual harassment claims. Here is just a partial list of companies dealing with very damaging sexual harassment issues: Wynn Resorts, Uber, Nike, Fox News, NBC, WPP, CBS, and Vice Media.  The common denominator here is that there all involved powerful executives, many of whom never took the sexual harassment training required by the company.  Since preventing value destruction is a key part of the job, now is the time for in-house lawyers to take advantage of this moment and – working with HR – help upgrade your company’s program and policies (or get them in place if not already there).  Use the scores of #MeToo stories in the news to win over executives who may hold on to the notion that “everything is fine” or that implementing a strong anti-harassment policy and program is not needed.  Most importantly, ensure that all executives complete the training.  In-house lawyers have a unique role in most companies – the business expects you to help them “stay out of trouble.”  In this role, you are the guardians of the company’s culture.  It’s never been more important that you embrace your part.

Sterling Miller

September 17, 2018

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