Are You Prepared To Handle The #MeToo Movement In Your Workplace?

By Christina S. Capizzi - McMahon Berger, PC

July 31, 2018

Months into the #MeToo movement, daily reports of high-profile sexual harassment complaints have led to a new question – are employers prepared to handle a harassment complaint?  Recent spotlights on failed investigations, inadequate employer responses, and investigations into how human resource departments are handling investigations illustrate how missteps following a complaint are just as likely to make news as the allegations themselves.

While reports of sexual harassment are still making news, the real concern for employers is the perception that a company is not properly handling an investigation into allegations of harassment, both from a publicity and a legal standpoint.  CBS Corp. recently announced plans to hire external investigators to handle the investigation into allegations of sexual harassment against its CEO, Les Moonves.  The choice to use an external firm to handle the investigation into allegations of harassment against the CEO is a smart move to ensure a fair and impartial investigation and potentially avoid the implication that the investigation was faulty or failed to remain impartial.

Under the law, an employer is expected to take prompt and effective remedial action.  There is no set standard for “prompt and effective” action; however, faulty investigations and reporting procedures are a major challenge to successfully defending claims of harassment.   A company’s failure to address this issue may ultimately lead to the determination that the employer’s complaint procedures were ineffective, barring a defense to claims of harassment.

A faulty reporting and investigation system is as much of a liability – if not more so – than a bad actor.  This is likely the reason we are seeing so many employers taking steps to both remove alleged bad actors and ensure their reporting systems are effective moving forward.  While the public announcements of these efforts may seem like a publicity stunt, the actions themselves are necessary to ensure each employer can provide a workplace free of discrimination and continue to defend itself against legal claims.

The Federal Emergency Management Agency (“FEMA”) is currently investigating its former head of personnel, Corey Coleman, for allegations of widespread sexual harassment over a period of years which was revealed through a seven month preliminary investigation.  Now that the accused leader of human resources has resigned, FEMA is left to wonder how far their problems extend.  Notably, the head of human resources typically would lead the charge of investigating complaints of sexual harassment and other forms of alleged discrimination.  When the leader tasked with investigating sexual harassment has been accused of engaging in harassment over a period of many years, the employer’s must look far beyond the current allegations to ensure other complaints have not been ignored.  FEMA Administrator William “Brock” Long acknowledges this fact in an interview reported by the Washington Post:

“ ‘The biggest problem I may solve here may be the eradication of this cancer,’ Long said. ‘How many complaints were not heard? I’ve got to make sure we have a safe working environment for our employees.’

Long said the problems extend beyond Coleman. The investigation is ‘not going to stop with him,’ he said.”
 

In a statement released by FEMA on July 30, Long promised a number of immediate policy changes, including the establishment of an Office of Professional Responsibility, a third party review of FEMA’s management and resolution of misconduct allegations, a full analysis of all open complaints and a review of cases which may have been inadequately addressed, and mandatory training for all employees.

Unfortunately, FEMA is not the only employer taking steps to rectify potentially inadequate responses to complaints of alleged harassment.  In the same week The Washington Post broke the FEMA news, Uber Technologies Inc. (“Uber”) and Nashville Public Schools made news related to the handling of harassment complaints and the steps each are taking to address the issue of faulty investigation practices.

Like FEMA, Uber is facing questions about how human resources handled allegations of discrimination.  In early July the company’s head of HR resigned following an investigation into how she handled allegations of race discrimination.  Uber’s CEO Dara Khosrowshahi described leaks to the press about the company’s recent troubles as “a symptom for us of a company that doesn’t yet, at all levels — at all levels — really, really trust that we’re going to do the right thing, not only externally, but also internally.”  Khosrowshahi was brought on last year following former CEO Travis Kalanick’s resignation after 20 employees were fired amid investigation into workplace culture.  Khosrowshahi’s comments and the resignation of the head of HR are reflective of a company taking a hard look at how it handles complaints of discrimination and harassment.

Although there appears to be no outward concern that Metro Nashville Public Schools has mishandled any investigations, Director Shawn Joseph has announced plans for an external investigation into investigation practices.  The external investigation will look at human resources policies and procedures regarding the handling of investigations, including a review of cases completed over the past year.  The investigation follows the recent resignation of a principal amid allegations of sexual harassment, and the December 2017 resignation of the former executive officer of organizational development following an investigation into allegations he made sexually explicit comments to male and female employees on multiple occasions.  The proactive nature of Joseph’s announcement is reflective of an employer that understands the need to address potentially faulty investigation procedures and practices before further issues arise.

The #MeToo movement is less than a year old and, as expected, employers continue to face complaints of sexual harassment and other forms of discriminatory conduct.  Now is the time to be proactive about workplace harassment, affirm a commitment to protect employees, and correct existing issues.

So what are employers to do?

Review your policies

Every situation and complaint requires a different approach, but a good start requires clear policies prohibiting harassing and discriminatory conduct and outlining the company’s reporting procedures. A clear procedure providing multiple avenues for reporting misconduct puts an employer in the best position to ensure complaints are addressed.  Like the situation facing FEMA, employees need reporting options outside of human resources in the event human resources employees are accused of misconduct.  The most effective anti-harassment policies focus on ending harassment, and the best way to protect your company is to prevent the problem before it develops into something pervasive.

Train your employees

Employees and management should be trained to understand what is or is not appropriate behavior in the workplace, the consequences of inappropriate workplace conduct, and the company’s policies and procedures related to harassment, discrimination, retaliation and reporting procedures.  Ongoing training, recommended to occur at least annually, provides a great opportunity to update policies, remind employees of the employer’s commitment to provide a workplace free of discrimination, and identify potential areas of concern.

Consider how you will handle complaints

Each complaint should be reviewed on a case-by-case basis to determine the best approach to an investigation.  While internal investigations are sufficient under the law, many employers are opting to hire external investigators to handle investigations, particularly with high profile cases, allegations involving company leadership, or small businesses which may lack the capabilities to handle an investigation.  An outside firm provides for more independence and impartiality, and employees hesitant to air their concerns to company leadership may be more comfortable talking to an outside investigator.

Of course, the results of each investigation will determine the final course of action, but an employer’s initial response should be a commitment to provide a fair and thorough investigation, regardless of the seriousness of the allegations.