MI
HAI
SU
RD
U/S
H
UTTE
RSTO
CK.
C
OM
SEXUAL HARASSMENT HAS BEEN ILLEGAL FOR
decades. But as news reports surfaced
in fall 2017 about Harvey Weinstein’s
sexual abuse allegations, everything
changed when actress Alyssa Milano
took to Twitter asking women to share
their stories of sexual harassment by
using #Me Too. The hashtag, which was
created years prior by civil rights activist Tarana Burke, quickly went viral, and
#MeToo became a forceful movement
that continues to gain momentum more
than two years later.
It should come as no surprise that as
the popularity of the #Me Too movement
grew, reports of workplace harassment to
federal and state agencies also jumped.
From fiscal year 2017 to 2018, the Equal
Employment Opportunity Commission
saw a 13.6% increase in charges alleging sexual harassment, and a 2018 Edison Research survey found that 21% of
Americans have experienced workplace
sexual harassment. But for businesses,
what is arguably most concerning is
that of the individuals who reported
experiencing harassment in the Edison
study, only 30% strongly agreed that
their employer handled it properly. This
means 70% of those employers have
changes to make.
THE LEGAL AND BUSINESS CASE
HARASSMENT PREVENTION
It goes without saying that a harassment-
free workplace is good for business. In
most cases, workplace harassment is not
a problem just between the victim and
harasser; it’s an issue for all employees
at all levels. Here’s why: first and fore-
most, it’s illegal. Employees experiencing
workplace harassment can file charges
against an employer with federal, state
and local agencies. These charges can
lead to costly litigation before the public,
negative press and intense scrutiny for in-
house counsel. There are also other less
tangible implications. When harassment
occurs, employees know about it, they
are talking about it, and they assume
their employer knows about it, too, and
yet is doing nothing. This undermines
employees’ trust, lowers company morale,
siphons workplace energy and reduces
productivity. Ultimately, all of this can
lead to a tarnished brand and lost custom-
ers, clients and profits.
Having informed employees and
responding swiftly and appropriately to
rumors and complaints of harassment
can help minimize these business interruptions and potentially eliminate legal
liability altogether.
PREVENTION THROUGH TRAINING
Having employees that are well-informed
of workplace harassment policies and
reporting mechanisms is a critical
component to any company’s harassment
prevention strategy. Employees are more
likely to report internally, as opposed
to externally, when they know how to
internally report sexual harassment
and what internal steps to take to get
the issue resolved. This can be accom-
plished through effective workplace
harassment trainings provided by
qualified trainers to all company employ-
ees on a regular basis.
BEST PRACTICES FOR INTERNAL
INVESTIGATIONS
After a harassment complaint is filed, in
most cases it will be necessary to conduct
an internal investigation. Assigning the
right individual to conduct it is a critical
first step. First, assess whether the investigation should be protected by attorney-client privilege. If so, qualified inside or
outside counsel should be utilized. In
all cases, whether it’s human resources,
inside or outside counsel, or management that is conducting the investigation, the investigator should be trained
and impartial.
When ultimately meeting with witnesses, one important thing investigators should know is that confidentiality
often cannot be guaranteed. Instead of
“whatever we talk about stays between
us,” an investigator should give confidentiality guarantees that are consistent with good business practices and
the law. An investigator can work with
#METOO AFTER YEAR TWO: LESSONS LEARNED
BY MAGGIE HICKEY AND LAUREN NOVAK
