Unless you have not been watching the news lately, you are keenly aware of the “#Me, Too” and “#TimesUp” movements. It seems that every couple of days a new allegation of sexual harassment in the workplace comes forward, so you should also be well-aware that these movements were borne out of a serious need to give voice to so many employees who have endured, and still endure, the shameful, illegal, but often passively-accepted behavior called Sexual Harassment in the workplace. Although this type of behavior does not affect only one gender, overwhelmingly, the victims are women who often hold a lower-level job than their harasser who very likely has the authority to hire, demote, promote, suspend, or fire them…in other words affect their ability to contribute to their own financial health or that of their family. I remember being a fairly new college grad who was trying to build my career when a member of my executive management team began to tell me that he wanted to kiss me or squeeze me. I felt that I would appear ungrateful for his taking me under his wing and supporting my aspirations for a career in Human Resources by allowing me to review applications, recommend applicants for interviews, and conduct phone interviews for company vacancies. I kept him at bay by telling him not to touch me. He never did, but I should not have had to tolerate such behavior. It is for this very reason that those of us who investigate charges of Sexual Harassment realize, that although the sexually-harassing behavior is based on sex, it is not always driven by attraction. It is driven more so by power…the harasser is able to control the victim” by banking on her/his fear of losing their career stability and financial independence, so they often grit their teeth and bear it rather than report it. While most employers recognize and respect the importance of affording everyone a harassment-free workplace, it is indescribably important that recognition and respect breed compliance…not just because the behavior is illegal, but because it is the right thing to do. So, with that in mind, today’s post offers action items for employers and Human Resources professionals who are serious about eradicating sexual harassment in the workplace but may not know where to begin in improving the way that they fight this appalling epidemic.
- Communicate – Let your employees know, during their onboarding process, and throughout their tenure with your organization, that they have the right to the reasonable expectation to work in an environment that is harassment-free; and that good-faith reports will be taken seriously and not ignored…regardless of the complainant’s or respondent’s rank in the organization.
- Acknowledge that anyone, regardless of gender or gender preference, can become a victim of sexual harassment. There could be male employees who are quietly enduring the unwelcomed advances of another employee because they either feel too embarrassed to say anything or they fear retribution.
- Accept each complaint as a good-faith complaint until proven otherwise through an objective investigative process. If a Human Resources professional or trained workplace investigator exhibits bias in one direction or the other before they investigate the facts, they will have just violated workplace investigations 101, “remain unbiased.” I would recommend requiring biased investigators to undergo refresher workplace investigations training before they are assigned to another case. Don’t get me wrong. I realize that bogus complaints are sometimes made, but in my many years of investigating such claims, I have come across only two that were not filed in good faith…even if the reported behavior did not rise to the level of sexual harassment. Biased investigators’ preconceived notion about the complaint will be evident throughout the process and could affect the outcome. You see, if they already think that they know what the findings will be, they will likely not ask all of the questions that should be asked, so their investigation will be incomplete and slanted to support their notion of an invalid complaint.
- Support good-faith complaints – Take them seriously and do not resort to victim-blaming or questioning the complainant’s credibility. This could easily backfire and be considered retaliatory. If the investigator is skilled, they will uncover the truth.
- Ensure that your anti-harassment training is thorough and does not leave gaps in its content? Some common gaps that can exist in sexual harassment training are that it a) fails to make it clear, beyond a reasonable doubt, that your organization has a zero-tolerance policy for sexual harassment in the workplace; b) fails to define what a zero-tolerance policy means. Many employees equate “zero-tolerance” to terminating the perpetrator’s employment. This may not always be the case. Zero-tolerance can sometimes be administered in tiers. For example, if an employer becomes aware that an employee, who has no prior history of exhibiting harassing behavior, makes an inappropriate comment or joke of a sexual nature to, about, or in the presence of another person in a workplace setting, the employer may choose to reprimand the employee in writing and require him/her to undergo retraining. The hope in this circumstance is that the employee will accept responsibility for their actions and will not exhibit such behavior again. In a different situation, that same employer may choose to suspend without pay and retrain, another employee who also has no history of sexually harassing behavior, but for whatever reason touches a co-worker inappropriately (i.e., hugging, hand holding, kissing on the cheek, etc.). Although there may not have been any sexual intent behind the behavior, it occurred in the workplace, and if it was unwelcomed, it is unacceptable and must be addressed. The hope here is likely that the employee who exhibited the unacceptable behavior will understand why their behavior was unacceptable; be sufficiently impacted by the loss of pay; understand how seriously the employer takes such behavior, and; therefore, not exhibit such behavior again. A final potential scenario is one in which that same employer terminates the employer/employee relationship with an employee who either has a history of such behavior or whose current reported behavior is so egregious the there are no mitigating factors that would allow for any action less drastic than the separation of employment. This decision can result from a revelation that the employee has committed “quid pro quo (this for that) harassment that is directly related to the victim’s continued employment, promotional opportunities, non-hostile treatment, etc. It can also be the result of a supervisory or management employee engaging in a sexual relationship with a subordinate employee. c) fails to make training mandatory for everyone. d) fails to define who is considered an agent of the organization. Some employees do not realize that their employer may also be held liable for the behavior of contractors who conduct business transactions their behalf. provide training for all who need it. Unfortunately, some employers don’t take their responsibility to ensure that their employees, from top to bottom, and anyone else who does business on their behalf, is properly trained in sexual harassment avoidance, recognition, reporting, and prevention. e) fails to engage. Instead, some employers only require their employees to watch a dated, recorded training module that is less than engaging and informing. When training fails to engage…it fails to train. There are countless vendors who could come in and cost-effectively assist an organization with upping its game when it comes to effective anti-harassment training. No room for excuses here.
- Create an environment of safety and trust for those who bring forth a complaint. Let both the complainant and the respondent know their rights and responsibilities under the law and in accordance with policy. Also, let them know the consequences of a non-good-faith complaint and of their failure to comply with the investigation. Don’t stop short. Let them know that retaliation is illegal and that anyone involved in the investigation process cannot be legally retaliated against and that there are serious consequences of retaliatory behavior. Most importantly, try to remove the Complainant and Respondent from interaction with each other during the investigative process. Many employers choose to place the Respondent on administrative leave with pay. If they are suspended without pay before the investigation is complete could appear premature and be seen as the unfair treatment of the Respondent.
- Advise the complainant of other avenues of reporting such as the Federal or State Equal Employment Opportunity Commission (EEOC), and do not try to interfere with their access to the process because it is their right under the law.
- Enforce confidentiality – Even if your employees complete a confidentiality agreement at the time that they are hired, I recommend having them to complete another one if they participate in a workplace investigation. Enforce it by including it in your workplace investigation procedures manual and addressing any breaches of confidentiality that arise.
- Don’t Turn a Blind eye – Address observed inappropriate behavior when it occurs.
- Advise managers that they are held to a higher standard and are required to report such behavior in the workplace. Even if their knowledge of it is hearsay, they need to report it to the employer’s Human Resources Department or their Legal Department. They should make certain to document when, and to whom, they reported the matter.
- Investigate rumored harassment – If it’s in the rumor mill, there is likely some credibility to it.
- Have a Sense of Urgency – Investigate these complaints immediately. failure to do so could increase the likelihood of the Complainant going outside of the organization to file a charge.
- Hold investigative close-out meetings with the Complainant and Respondent to advise them of the findings and following the employer’s protocol on administering corrective action in response to “cause findings.”
Some may say that this should all be common sense, and it just may be. But it is the employer’s responsibility to try and avoid being blamed for passively accepting such behavior in their place of business or having any of their employees to be able to truthfully state that they had never received proper anti-harassment training while on the employer’s watch…especially in the wake of an investigation into a complaint of sexual harassment.
