PROACTIVE REPRESENTATION THAT GETS RESULTS

PROACTIVE REPRESENTATION THAT GETS RESULTS

#MeToo and Sexual Harassment in the Workplace in Recent Years

On Behalf of | Oct 5, 2021 | Sexual Harassment

It has been almost four years since the #MeToo movement gained significant traction in media– a global movement in which survivors of sexual harassment and sexual assault shared their stories to bring attention to gender and sexual discrimination (in and out of the workplace), to start conversations, and to demand change for women, socially and legally.

The #MeToo hashtag was started in 2006 by New York activist Tarana Burke, who wanted to empower women and sexual-violence survivors by showing them that they are not alone, by uniting them with a platform to share their voice. The hashtag gained momentum once again in 2017, when actress Alyssa Milano reintroduced it as part of an anti-sexual harassment movement.

How has sexual harassment in the workplace changed since #MeToo?

According to a Harvard Business Review study of 250 women in the U.S. asking about their experience with sexual harassment in the workplace, 25% of women reported being sexually coerced in some form in 2016. When surveyed again in 2018, that number had declined to 16%. Reports of unwanted sexual attention in the workplace also decreased from 66% in 2016 to 25% in 2018. However, there was an increase in reports of gender harassment–behaviors not aimed at sexual cooperation but that convey insulting, hostile, and degrading attitudes about members of one gender.

What can Employers do?

Since #MeToo, many public and private employees have sought to address and improve their sexual harassment policies in the workplace and implement regular training sessions, like anti-harassment training, and provide more accessible resources for their employees.

Effective policies and regular training, however, may not always prevent harassment from taking place. What is an employer to do when it receives a complaint or report of harassment from an employee? Here’s a model list of best practices.

1. Promptly and thoroughly investigate every complaint.

And when in doubt, investigate. Take all complaints seriously and make each investigation a priority, even when the complaint is lodged by a habitual complainer or when the complaint seems frivolous. Not only does state and federal law require an employer to take action, but an investigation can also serve as an affirmative defense to legal claims that can potentially limit an employer’s liability. In the end, prompt investigations not only can reduce the risk of legal action, they can also help a company identify—and prevent—bigger problems and demonstrate to its workforce that it is committed to a safe and fair workplace.

2. Carefully plan the investigation.

An employer must clearly define the purpose and scope of the investigation. The following questions can help an employer through this initial planning process: What is being investigated? What policies or guidelines apply to this investigation? Who will conduct the investigation? Who will be interviewed, and in what order? What documents should be reviewed or gathered? Is any interim action necessary, such as paid or unpaid leave? What confidentiality issues need to be observed? Should legal counsel be retained?

3. Select an Appropriate Investigator.

Not all investigations are created equally, and an employer has a variety of options in determining who should lead or conduct any particular investigation. Should an employer allow its own HR personnel or in-house counsel to conduct the investigation? Or should it hire an HR consultant or outside legal counsel? An employer should consider the type of misconduct involved and a potential investigator’s experience or expertise with that subject matter. Also critical are the job titles and positions of the employees involved in the misconduct and the relationship the potential investigator had or has with those employees.

4. Basic rules for all interviews.

At the outset of each interview, communicate a planned message that sets forth a brief explanation of the nature of the investigation, the company’s legal obligation (or desire) to conduct the investigation, and a brief summary of the investigation process. The investigator should also inform each interviewee that he or she is protected from retaliation or other adverse actions for participating in the investigation.

In general, the investigator should prepare an outline of questions to ask each employee interviewed. The questions, ideally, are open-ended, seeking to elicit facts, not subjective opinion. The investigator’s demeanor and tone should at all times remain neutral and professional. The investigator should request supporting evidence during each interview – photographs, e-mails, notes, calendar entries, etc.

Equally important to the manner in which the interview is conducted is the physical location and other logistics related to the interview. For instance, conduct interviews in an appropriate private office or, depending on the circumstances, at a secure off-site location. Employers are advised to have two people present for the company during each interview – one to question, one to take notes. Finally, all interviews should be conducted with one employee at a time.

5. Document, document, document.

Aside from the notes an investigator takes during each interview (and the written statements that are obtained), an investigator should also, on a separate document, assess the credibility of each employee and record his or her thoughts, impressions, and objective observations after each interview.

6. Prepare an objective investigation report.

After the interviews are completed, including any necessary follow-up interviews, the investigator should prepare a written report. The report summarizes the individuals involved, all relevant facts uncovered, and all credibility determinations (and the basis for each such determination). The report also sets forth the policies, procedures, or guidelines that were implicated by the complaint and issues, if any, that could not be resolved. Finally, the report should set forth the conclusion reach by the investigator but not the discipline, if any, to be imposed.

After the report has been prepared, the investigator should meet with those individuals who need to be involved in the outcome of the investigation: HR personnel, in-house counsel, appropriate executives, and/or outside counsel. While the investigator should present the report to the appropriate individuals – the decision makers – the investigator should not be involved in making the final employment decision.

Finally, a word about he-said-she-said cases. Although these cases typically present situations that are more difficult to resolve, an investigator should make his or her own credibility determinations, along with an evaluation of all of the other witness statements and physical evidence, to reach a conclusion. Plausibility, demeanor, motive, and corroboration all play an important role in reaching a conclusion.

7. Take prompt action in response to the investigation.

When an investigation yields misconduct of any sort, including sexual harassment, an employer must take immediate remedial action. What remedy is required will depend on the specific facts of each case, but may include termination, suspension, demotion, transfer, counseling, or additional training. Whatever action is taken, it should effectively end the inappropriate conduct and sufficient to deter similar future conduct.

8. Follow-up with the complainant.

After the written investigative report is submitted to the decision-makers, the human resources department should take additional action to follow-up with the individuals involved in the investigation. First, a memorandum should also be prepared for the complainant that reports the conclusions of the investigation and confirming what action, if any, will be taken.

Second, a separate memorandum should also be prepared for the alleged wrongdoer that reports the conclusions of the investigation and any action, if any, to be taken. The memorandum, of course, should remind the alleged wrongdoer of the prohibition against harassment and retaliation.

HR personnel can also review the investigation to determine what, if anything, could have been done to prevent the misconduct and can use the investigation to determine what additional training, if any, may have prevented the misconduct. In short, HR personnel should use every investigation as a learning experience and become proactive in their efforts to avoid similar situations from arising in the future.

9. Preserving investigation documentation.

After an investigation is complete, an employer should maintain all investigative materials – interview notes, witness statements, correspondence, documents gathered, etc. – in a separate file, not in any employee’s personnel file. The materials should be marked as investigative materials and kept confidential. Access to the file, of course, should be limited.

Today, the #MeToo movement is still a source of solidarity for victims of sexual harassment. The impact the movement had around the country–and around the world–is undeniable. As an employer, knowing how to address workplace sexual harassment before it occurs is key.

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