By Regina Esslinger
#MeToo swept headlines across the country. Media moguls, politicians, justices and high profile executives had a glaring spotlight shining in every chapter of their lives going back to adolescence.
The media told us to believe alleged victims simply because of their gender. At times, #MeToo seemed to empower women who had been harmed to come forward. Other times, #MeToo seemed like a political circus not tried in the courtroom but on talk shows, news headlines and Congressional hearings.
#MeToo brought sexual harassment out of the shadows and into the mainstream. The days of explicit jokes, improper behavior and girly calendars in the workshop weren’t as far behind us as we thought. But #MeToo left a wake of destroyed reputations regardless of guilt or innocence. The ripple effects have been felt in companies and organizations, large and small, from coast to coast.
The significant impact of #MeToo
Sexual harassment is a form of sexual discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including federal, state and local governments, employment agencies and labor organizations.
The Equal Employment Opportunity Commission (EEOC) reports that of the 90,558 charges they received in 2018, 32.3% included allegations of sexual harassment, a 13.6% increase from 2017.
In a press release dated April 10, EEOC Acting Chair Victoria A. Lipnic states, “Our fiscal year 2018 final statistics reflect significant recoveries for individuals through our administrative enforcement and litigation program … Further, we cannot look back on last year without noting the significant impact of the #MeToo movement in the number of sexual harassment and retaliation charges filed with the agency. Last year was an incredibly important and productive year for the agency and my thanks go out to all of the staff who rose to the occasion.”
A 2016 study by the EEOC, “Select Task Force on the Study of Harassment in the Workplace,” focused on prevention. The study was not confined to “legally actionable” behaviors but rather behaviors, which left unchecked, may set the stage for unlawful harassment.
The study consistently found 25% of women reported experiencing “sexual harassment” when the term was not defined. Surveys conducted using samples of unwanted sexual behaviors reported higher incidents of sexual harassment, rising to 40% and then to 75% as the respondents were able to discuss their experiences similar to the samples.
When a “Sexual Experiences Questionnaire” was used, that not only asked about unwanted sexual attention and sexual coercion but whether they had experienced sexist or crude/offensive behavior, the rate rose to 85% of respondents affirming the experience.
As an employer, it takes just one complaint to put an organization in jeopardy. In 2018, the EEOC alone recovered $56.6 million specifically for sexual harassment claims. Of the 302 cases on its active docket, the EEOC achieved a successful outcome in 95.7% of all district court cases.
Victims of workplace harassment may suffer mental, physical and economic harm. Workplace harassment goes beyond the victim and affects all workers. Its cost to the company includes decreased productivity, increased turnover and reputational harm. Costs may include a destroyed reputation, costly legal fees and decreased performance — all of which affect the bottom-line.
In this #MeToo environment, how do you ensure your organization is a #NotMe? Here are a few things to consider:
Company culture starts at the top, most often the very top. Most organizations have a vision and mission statement that encompasses the history, customer, product or service and look to the future. Many companies take out these statements and dust them off for annual reports, sales proposals and important meetings.
Company culture is more than a catch phrase or a plaque on the wall. The culture of a company is how employees treat each other, customers and vendors. A culture of respect is the best tool to eliminate workplace harassment.
To build a culture that does not tolerate unwelcomed behavior, an executive team should strive to create an environment in which employees feel free to raise concerns and employees are confident those concerns will be addressed. An executive team that models such behavior will build a culture that permeates throughout the organization and is the best prevention of workplace harassment.
A well-written harassment policy sets the stage. It should clearly define what harassment is and what it is not. It should include the reporting process, investigation and corrective actions. Following is some guidance from the EEOC:
“It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include sexual harassment or unwelcome sexual advances, requests for sexual favors and other verbal or physical harassment of a sexual nature.
“Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
“Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
“Although the law doesn’t prohibit simple teasing, offhand comments or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
“The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker or someone who is not an employee of the employer, such as a client or customer.”
Having a well-defined reporting process will help your employees alert management to unwelcome behavior and protect the organization from potential liability. Employees should be encouraged to report harassment to management at an early stage to prevent its escalation.
Employees should have at least two options for directing a claim. Typically, the immediate supervisor receives the initial complaint. However, in case the supervisor is implicated or unavailable, an alternate supervisor or manager should be identified to receive a claim. Complaints can be made verbally or in writing. The policy should also address claims that are knowingly false.
All allegations should be investigated, no matter how trite they may seem. Never assume guilt or innocence — investigate! The accused should be given the opportunity to understand what was perceived as unwelcomed and explain his or her behavior. Document the complaint, the rebuttal and any witness statements. Have written documentation of the determination and the outcomes. If it was a misunderstanding, document any conversations clearing the air.
Any corrective action taken should be thoroughly documented with date(s), time(s) and participant(s). Many times, the corrective action plan is outlined but the actual completion of the plan is not documented. A record of the follow-up activity is very important. Otherwise, the corrective action merely looks like a suggestion.
Many companies support zero tolerance for workplace harassment. Any overt acts of harassment or any knowingly false reports result in immediate termination. For companies without a zero tolerance policy, outline corrective action steps in-line with the degree of abuse, such as counseling, mediation and other remedies before resulting in termination.
Harassment training is necessary for employees, supervisors, human resources staff and management. Employee training should clearly define what is and is not harassment and provide each employee with a copy of the harassment policy.
Employees should be encouraged to report harassment in the early stages before it escalates. They should understand the importance of reporting harassment and the consequences of knowingly reporting a false claim. They should know to whom they can report claims and have a basic understanding of the process once an allegation is made.
Supervisors should be trained to identify unacceptable behavior and how to prevent it from becoming harassment. They should be instructed how to handle an allegation and to whom a claim should be escalated. Supervisors should understand their role in the investigation and any corrective action.
Human resources staff must be knowledgeable and have a clear understanding of what constitutes harassment. Human resources must remain neutral during the investigation and ensure management is aware of any complaints made. Human resources staff typically handles the investigation, documents the findings and works with supervisors and management to determine if the complaint warrants instruction, corrective action or termination.
Management should have a basic understanding of the liability of a harassment claim. The employer may be liable for harassment not only by a supervisor but by a non-supervisor or a non-employee such as an independent contractor or a customer on the premises.
Well-documented prevention such as training employees and supervisors, prompt and appropriate action like addressing issues before they escalate and corrective actions when harassment occurs will help protect your employees and mitigate liability.
Protect your organization in a #MeToo environment. Ensure your organization is #NotMe with a culture of respect, a comprehensive harassment policy, a trained staff and well-documented processes.