What started as a reaction to allegations against Hollywood heavyweight Harvey Weinstein in October has become more than a viral hashtag, and has left many employers anxious about how the #MeToo movement might manifest in their organizations.
With new stories coming out on almost a daily basis about celebrities, politicians and other prominent public figures, sexual harassment has gone from a topic normally not addressed in public to dinner table conversation.
In the wake of these high-profile allegations, employers are concerned that employees may start coming forward now about past experiences or behavior. Some employees are now coming forward now either because they didn’t realize at the time that such conduct constituted sexual harassment or because the employee didn’t feel comfortable disclosing the incident immediately after it took place.
It’s essential now more than ever for employers to open a dialogue with employees on how to address sexual harassment in the workplace.
Defining sexual harassment
With something as complex as “sexual harassment,” it’s important to start any discussions by defining what exactly the term means. From an employment liability perspective, sexual harassment is a form of discrimination that violates an employee’s rights under Title VII of the Civil Rights Act of 1964. It occurs when unwelcome conduct of a sexual nature affects an individual’s employment or interferes with his or her job performance.
Intent is the most common misunderstanding amongst employees when it comes to sexual harassment.
Many people are under the impression that conduct isn’t sexual harassment if the harasser didn’t intend to harass the victim. It is essential for employers to understand, however, that the harasser’s intent is not important when it comes to determining whether the behavior constitutes sexual harassment. Instead, it is the impact on the victim that matters.
Addressing sexual harassment allegations
Employers should always take all reports of sexual harassment seriously. In fact, one of the biggest mistakes an employer can make is dismissing a report without conducting a proper investigation to determine the validity of the claim.
Ideally, a neutral third-party should conduct an investigation into allegations of sexual harassment.
The third party (such as a human resources consultant or the organization’s employment counsel) is trained on how to conduct these investigations to ensure that no bias or pre-conceived notions about either the harasser or the victim color the findings.
Not only will this person have a better understanding of the legal definition of harassment and know what questions to ask, but also any employee being interviewed as witness is more likely to feel comfortable speaking to someone with whom they don’t have a personal relationship.
If the employee who made the allegation presents compelling, documented evidence of severe or pervasive harassing behavior, the person conducting the investigation may recommend that the organization terminate the accused employee immediately.
Even if the evidence presented doesn’t rise to this threshold, it may still be appropriate for the employer to suspend the accused employee while the investigation is being conducted. Otherwise, employers should wait until the investigation concludes before taking any further action.
There are three likely outcomes to most sexual harassment investigations.
If the compelling evidence is severe and proves pervasive harassing behavior, then the employer takes adverse action against the employee (up to and including termination). If there is little or no evidence of harassing behavior, then, no action is taken against the accused employee. Finally, there could be evidence of behavior that is unprofessional but does not meet the standard of sexual harassment.
It’s important to note that just because the behavior in question isn’t found to meet the definition of sexual harassment, that doesn’t mean the organization should not be taking steps to curb it.
If evidence of inappropriate or unprofessional behavior is found, employers can and should still address the behavior of the employee with coaching, counseling, discipline, or even termination. Such behavior may also constitute creating a hostile work environment, which also is illegal.
Throughout the entire process, employers should strive to keep the employee who reported the behavior as updated as possible about the progress of the investigation to ensure they know the company is taking their concerns seriously.
This includes an update at the conclusion of the investigation to inform the employee of any findings and to assure them that appropriate action (if any) will be taken to address the situation.
Although sexual harassment is rarely something supervisors or business owners feel comfortable addressing, it’s something employers have to be equipped to deal with (either with internal resources, through employment counsel or by using a professional employer organization), particularly in the wake of the #MeToo movement.
