Sexual Harassment – The “#METOO” Explosion
Robert E. Gregg | 02.08.18
There has been an explosion of sexual harassment allegations in both the press, and in complaints to employers. Famous media figures, politicians, executives, and public and corporate managers have suddenly had to face the ramifications of their improper behaviors. Harassment is certainly not new. Yet now there is a new environment, new support and new motivation to come forth. Organizations, Congress and Legislatures are paying attention. Enhanced policies, practices and new laws and liabilities are coming.
Why Now? Why has there been such a public explosion of sexual harassment reports in the past year? Thousands of people, male and female, are suddenly coming forward to report “METOO” incidents.
Perhaps it is not such a “sudden explosion” of reports. What may be “sudden” is the press attention on high profile people, and the resulting attention to sexual harassment at all levels. Harassment has been far too common for far too long. A good level of individual reporting of incidents may have been there all along, it was just not noticed without national media attention. Let a major star or movie executive be charged – NOW the press pays attention, and it seems like a sudden development.
Why Else? Many of the reports previously made were rejected, and people learned that any action was unlikely, or unavailable. Actresses, actors, and a number of others coming forth are often Independent Contractors, not employees. So media and production executives, agents and fellow actors are not “employers” and usually cannot be sued, because they are outside of the employment laws. Anything short of actual criminal physical assault may not be actionable at all. There is nowhere to go.
Even physical groping, when reported, may only be a “fourth degree misdemeanor.” A report to the police often goes nowhere. In the priorities between homicide, and major felonies, the misdemeanor gets lost, or even turned away. No employment protection – no criminal actions. No protection from retaliation.
Congress created a “complaint” process for itself full of delays and red tape – designed more to discourage complaints, frustrate the victims, and bury any real investigation or action, while protecting the politicians. People learned it was usually a dead end effort.
When owners, CEOs, or “key” people of organizations are charged, the issue has often been ignored or sidelined to protect the “key players.” Pursuing it further can end the career of someone who complains.
A survey of 600 corporate directors found that harassment and work environment are rarely concerns at board meetings. The majority of female directors reported getting a dismissive reaction when they tried to raise the issue. Thus, executives and board members learn in the press about what was occurring in their own organizations, and have to react, instead of pro-act. The corporation is “managed by crisis,” rather than forethought and responsibility to employees and to itself.
Men who complain about sexual harassment by women have routinely been disregarded by the police, and by their own organizations. “What are you complaining about?” has been an all too standard response. Also, and unfortunately, some employers focus their harassment policies on protecting women, and not on the “untraditional” incidents. They give far less attention and credence when men complain, not understanding that the EEO laws protect all people.
Far too many people have learned, from their own experience, or those of people they know, that complaining was ineffective, or worse, could result in retaliation – with no protection.
People ask – “Well why didn’t they come forth sooner?” Those are some of the significant reasons that people did not, or those who did simply get shunted into a corner, and were never really heard.
Now there is social media. Now there is a “movement,” and support, to get attention. Now, finally, the press and organizations are paying attention, including those organizations which are not “employers,” and may not be covered by the employment laws.
Expect New Developments. Congress and state legislatures are taking a renewed interest; both in policing their own bodies, and in considering legislation to address the “new” concern. Some are considering laws to cover the non-employment Independent Contractor or similar relationships. There is a renewed interest in the Model Healthy Workplace Act. Expect new laws and expanded liabilities.
In many organizations sexual harassment seems all too common. Yet in others it rarely arises and is quickly and effectively addressed. What is the difference?
If your organization is one of the former, how do you change, and create effective practices to establish a Respectful Workplace? If your organization is a Respectful Workplace, how do you continue and enhance that status in the light of current developments and upcoming laws and liabilities.
Your Policies and Practices are Under Closer Scrutiny
Too many organizations which did receive complaints did not properly act. Now prompt and effective action, or lack thereof, are getting much closer press and legal attention. Unfortunately, too many policies and response practices are not designed to have priority and be effective. Many supervisors do not know what to do; some cannot even tell you what the Anti-Harassment Policy covers, or what it says! “Oh it’s somewhere in the handbook. I’ll read it if I ever need to.” Those supervisors can hardly be expected to promptly recognize and act on any sort of incident that falls below the overt criminal felony level – if that.
Some organizations fail to address complaints. However, there is now also a growing critique about “rush to judgment,” and unfairly “railroading the accused” without a fair process. Unfortunately, this, too, has some credence. When the press and public pressure is on, some organizations act hastily to beat the heat and bad publicity rather than give fair consideration. Expect a number of challenges by those who have suffered overreaction or been unfairly discharged. The same plaintiff’s attorneys who represent the “harassed” also zealously represent the “unfairly discharged harasser.”
In the new climate even organizations which acted fairly and deliberately are going to be accused of the unfair discharge and “discrimination by investigation.” So now is the time to reassess your practices to assure they are up-to-date and more than adequate to protect the rights of all parties involved. The liability for improper investigation and improper discharge can be even greater than the harassment liabilities.
Are You PREPARED?
Here is a checklist:
Is it current? Courts have recently found a number of policies inadequate.
- Comprehensive coverage of EEO categories.
- Emphasis to all employees (signed – not just somewhere in the pages of a thick Handbook).
- Given to all – temps, student/interns/seasonals, etc. (who are often the most vulnerable).
- Prohibits “inappropriate” behaviors – not “illegal harassment” (or you will always be verging on illegality) set the level well below “illegal,” to give space for correction – rather than discharge.
- Ease of reporting.
- Designated specific people/positions to report to (not “your supervisor” for a formal complaint).
- More than one way and location for reporting – to provide a way around “blockages.”
- Prompt action promise – with both an informal and formal option (not just “discipline/discharge” for every infraction – no matter how minor).
- Guarantee of no retaliation.
A policy is just a piece of paper. Give it meaning and life: emphasis of its importance.
More detailed Guidelines to back up the policy; work rules on inappropriate behavior.
Training of all employees – real training. The EEOC and other experts have opined that a computer/video/post-test taken by an employee, in a little room alone, is generally ineffective. It is subject to inattention, test answers provided in advance, and may signal this shows the employer is “glossing” the issue as unimportant and pro-forma. Short training of only an hour is ineffective. It demonstrates the organization’s lack of concern. It is a gloss, not a real effort to educate.
Training of managers beyond the general all-employee program. How to recognize, report and react to situations.
Collateral policy coordination. Policies intersect and reinforce each other. The policies on computer/phone/electronic usage; workplace dating/nepotism/favoritism; conflicts of interest; dress code, boundaries with clients, etc. should coordinate with the harassment policy.
Follow-ups to re-emphasize the training. “One and done” is virtually designed to fade and fail over time. Keep the message alive, in small doses over time (articles, clippings, short part of meeting agendas periodically).
Process & Action.
Thorough review of the process for handling complaints.
- Review of current process and protocols.
- Fairness to complainant and those complained about – non-discriminatory; due process.
- Protocols for corrective action and for communicating findings of no improper behaviors.
- Anti-retaliation protocols.
Processes for handling even more sensitive issues:
- Child labor/juvenile workers complaints, and improper behaviors toward employees by these same juveniles.
- Students, patients, those with special vulnerabilities.
For more comprehensive information, request the Boardman Clark articles Harassment Policy and Procedure; Restrictions on Workplace Romance and Consensual Relationship Policies; A Word of Caution About Investigating Employment Matters.
Instead of asking “why now?” perhaps the question should be “why still?” Why is this still going on after the anti-harassment laws have been in place for decades? Why have many organizations seemed so laissez faire about harassment and abusive behaviors, and not made civil and respectful behavior a central part of their mission statement and culture? Why do individuals continue to engage in actions they clearly should know are improper?
We live in a world in which we are often unable to control events or outcomes. However, we all have the full ability to control our own hands, our own mouth, our own gaze, our texting, and our own behaviors toward others. Every organization should have that expectation and that requirement for all of its people. Every organization should develop the policies, guidance, mission, education and commitment to assure that this occurs.
DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.