About a year ago, 10 days after the Harvey Weinstein sexual harassment story broke, Alyssa Milano tweeted “– if this has happened to you tweet #MeToo.” In the first 24 hours after that tweet rocked the nation, Facebook had 12 million Facebook posts and a movement was born. The movement is creating new landscapes for employers as their obligations are shifting and cultural expectations are continuing to morph. New laws have been enacted or are under consideration. In the past year Delaware, California, and New York have enacted laws making harassment training mandatory for employers to provide for their employees. Here in Minnesota state lawmakers came very close to passing a bill that would have significantly altered the standard courts and agencies use to evaluate sexual harassment claims under the state human rights law by essentially eliminating the standard altogether. This would have made it much easier for employees to successfully assert sexual harassment claims and bring them to trial. Organized action by the business community raised concerns about the potential impact of the bill and stalled it on its way to passage in the last legislative session.
In addition to changes in states’ laws, increased scrutiny and attention is being paid to company history. Harassment claims or other misconduct, particularly involving management and officers, can impact the sale or purchase of a business. Potential buyers are performing increased due diligence regarding companies’ sexual harassment policies, training, complaints, processes for investigation and resolution of complaints. Potential buyers of businesses are including representations and warranties in their agreements to buy. Sellers are increasingly considering representation and warranty insurance policies.
So what are the best, most effective things that businesses can do in this climate and sea change? Answer – TRAIN and INVESTIGATE.
First, if you haven’t trained your employees, including all managers, supervisory personnel and leadership, or if you have not done so in the past few years, consider doing so now. Conduct in-person, interactive, participatory training, not videos or webinars. Consider using qualified outside personnel. Include and focus on promoting a respectful and safe workplace, not just avoiding liability. No amount of training will overcome a business environment that allows disrespectful and unprofessional conduct or ignores bad acts or complaints if it involves the good ole’ boys or rainmakers or top management. Beware of and be careful of the “power factor” where rank, reputation, revenue generation or long service, provide insulation or immunity from bad acts. Make the training mandatory and follow up, follow through and follow your own procedures. Get buy-in and demonstrate commitment from the top down.
Follow through to prevent retaliation which can take many forms, even being left out of internal opportunities or being ostracized which show others what can happen to them if they complain.
Incorporate training on bystander intervention techniques to give employees the tools to communicate with neutral responses when sensing other employees’ discomfort with a situation.
Make and keep detailed records of your training to show what resources have been directed to training on sexual harassment issues and show the quality and experience of those who do the training. Do compliance training regularly. Include in the training a focus on workplace civility. Review and communicate policies and protocols for reporting harassment.
When it comes to investigations train your HR staff to competently and quickly respond to claims. Investigate seriously, promptly, thoroughly, quickly and record and communicate the results appropriately. Consider when to bring in outsiders to investigate which may help with confidentiality, competence, and impartiality. Be consistent in how claims are investigated and do not show favoritism or ignore complaints when made about leaders, business generators, long-term or higher ranking employees, or the good ole’ boys.
The post-Weinstein era created a flood of high profile accusations of gender bias and sexual harassment in industry, media, government, and throughout the private sector causing a dramatic increase in claims, lawsuits, and money paid out. The #MeToo movement continues to dominate the media and garner attention. The simple tips in this blog will go a long way toward reducing or eliminating the chance that you and your business will end up a #MeToo statistic.