Loyola University Chicago School of Law, JD 2021
In October of 2017, the downfall of disgraced sexual harasser Harvey Weinstein made national news and started what is now popularized as the #MeToo movement. Since then, numerous people have come forward to share their stories of workplace harassment in various industries. This leaves those in the human resources and/or compliance departments with a two-fold task: (1) protecting their employees, and (2) protecting the organization from legal liability regarding sexual (and other forms of) harassment in the workplace.
It is easier to prevent than to deal with the fallout of harassment issues. It is thus important for every organization to have not only a workplace harassment policy for new and continuing employees to read and sign, but to on-board each new employee with a workplace harassment training. This training should ideally be customized to the organization with relevant scenarios to the particular workplace or industry. In addition, it would be advisable to hold annual or at least semi-annual trainings to refresh current employees of such policies. At the end of the training, it is generally considered best practice to collect “attestations” (signatures) of employees proving that they attended the event. Such attestations would serve to protect the organization should allegations of harassment occur, as it would be evidence that the company was pro-active in its no-harassment policy and (mandatory) trainings.
In terms of harassment policies established by the organization (which all employees should be required to sign), it is important to not only include verbiage that details anti-sexual harassment policies, but also cover federal and state protected classes. For example, harassment policies should clarify the company’s compliance with anti-discrimination laws, even if the harassment is committed by a lower-level employee rather than a supervisor or the company owners, a lawsuit regarding hostile work environment could potentially ensue. Such preventative actions, again, would be beneficial in terms of showing evidence of pro-active trainings and policies against illegal discrimination and harassment.
Unfortunately, sometimes even the best-laid policies and rigorous trainings do not prevent incidents of harassment and accusations of harassment. If an employee reports an incident of harassment, most mainstream compliance programs mandate that the incident be thoroughly investigated. A compliance professional would usually start with interviewing the complainant, and then the supervising manager of the complaining employee (unless the manager is the person accused of such harassment). Witnesses of the alleged event ought to be interviewed as well. Finally, the compliance professional should collect any evidence related to the claim — this could be in the form of emails, texts, photos, etc. It is important throughout the investigation process that the compliance professional documents the process and the outcome of such an investigation, as it may be used in a more formal manner (i.e a lawsuit) eventually.
It is crucial that no punitive action is taken against the accuser. Any evidence of such action would most certainly jeopardize the organization’s standing in a lawsuit as well as potentially be cause for a complaint with the Office of Civil Rights. After the complaint is filed, it may be tempting to separate the complainant and the accused party; however, it is critical that the complainant does not perceive such separation as punitive action (i.e. given less relevant work, a demotion, or salary reduction).
Rights of the accused
The accused has a right to due process. Thus, it is not advisable to immediately terminate an employee after an accusation is made. A full and fair investigation should be held, which needs to include an interview with the accused in addition to the accuser. The accused party should also be allowed to present evidence backing his/her innocence. If it is determined that the accusation is valid, the company may want to consider 1) issuing a warning and/or disciplinary action to the accused, if the incident is not deemed to be particularly severe, 2) terminating the employee, or 3) asking the employee to resign. It may or may not be advisable to offer a severance package in the second or third case, given the nature of the circumstances.
The #MeToo era is one where those who did not speak out before may feel encouraged to speak out now. This certainly brings about new challenges to the human resources and compliance departments, as HR and compliance departments must balance the rights of the accused with the rights of the (alleged) victim. However, with a fair process and thorough investigation, one can manage such a challenge while protecting both the employees and the organization.