A Sexual Harassment Sea Change for Employers?

Just over a year later, it has become clear that the landscape has changed. Recent events would appear to indicate that those on the receiving end of sexual harassment are perhaps now more inclined to speak out, and not just using internal complaints procedures, but also by involving the media, in high-profile cases, and by posting on social media platforms. Victims of sexual harassment in the workplace may now feel further empowered to stand up and make their voices heard without fear of ridicule or contempt, and, arguably, it has never been easier to do so.

How should an employer deal with these complaints or allegations? Take a leaf out of the CBS News book by dealing with any such complaints immediately, and, where the allegations have been made in a public context, keeping the public informed.

Given the changing landscape and ease with which allegations can be made public via social media platforms, any complaint or allegation of sexual harassment should be treated as a crisis event and managed by the employer as such. A failure to deal with this appropriately could not only lead to legal liability for the employer vis-a-vis its obligations to its employees, but also to damaging reputational issues for the organisation as a whole.

Now is the time to take action and to show employees that the zero tolerance approach to all forms of workplace harassment is not just written policy but is something which is genuinely taken seriously and managed appropriately.

What Is Sexual Harassment?
There are some differences between the United States and Europe in terms of the right to complain about sexual harassment in the workplace, including in relation to the intention of the perpetrator, and which party has the burden of proof. The broad legal definition, however, is essentially the same. Sexual harassment is unwanted sexual conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. It is inextricably linked with relationships in which there is an imbalance of power, of which many exist in the context of the workplace.

The legal rights remain the same, but the landscape has changed significantly. Public awareness of the issue of sexual harassment has never been higher and is being led from the front by celebrity campaigns, such as Time’s Up. There is less tolerance of inappropriate behaviour, both in the workplace and in society generally. And all those who have a concern, issue or allegation can raise this publicly via the media generally (for high-profile cases, such as Charlie Rose) or, otherwise simply by posting an allegation on social media (consider for example, the use of the so-called “Shitty Media Men” list).

Employers are now more likely to have to deal with more of these types of allegations, and not just within the confines (and privacy) of the operation of their internal policies. A prudent employer will be taking stock now to ensure that there is an appropriate crisis management plan in place to deal with this. 

Managing the Crisis
Employers should anticipate the crisis event and prepare for the possibility of a complaint of sexual harassment naming a senior/management/other employee as the alleged perpetrator, whether this is by way of an internal complaint or a public declaration on social media or otherwise. No employee is too senior or too important to be absolved from blame if such allegations are upheld. This may not now be an issue that can wholly be resolved internally without any publicity, and the strategy to take will depend upon the forum in which the complaint or allegation is raised.

Internal Complaints—Actions to Take Now

• Act decisively and take responsibility before a complaint or allegation is made. Promote internally your equal opportunities, anti-harassment and anti-bullying, whistleblowing and social media policies within the workplace. Train your employees and managers on their obligations. Remind them of the zero tolerance approach to harassment and bullying.
• Review and ensure that your policies are fit for purpose: employees may be empowered by recent events to raise their own concerns and you should be ready for this.
• Encourage employees to come forward internally with their concerns using the company policies. Nominate a champion (a senior employee) within the organisation for harassment issues, who can serve as the first port of call if any employee has a concern about harassment. Consider setting up a third-party confidential helpline for employees to raise concerns and obtain advice as to the appropriate next steps, and to give them the confidence to raise their concerns.

Actions to Take if Faced with an Internal Complaint

• Treat any complaint with sensitivity and ensure that confidentiality is upheld to the extent that it is possible to do so. Only those with a need to know within the organisation should be privy to the details of the complaint and the process to be followed.
• Investigate the matter promptly with an open mind. Don’t reach any conclusions until the investigation is complete. In serious cases, it may be appropriate to appoint a trained third-party investigator, but be aware of privilege issues.
• During the investigation take steps to ensure that the complainant is not required to report to or otherwise work with the alleged perpetrator. This may involve a suspension or transferring the perpetrator temporarily to a different role. Take legal advice on the best course of action.
• Be decisive: take appropriate action based on the outcome of the investigation. If the complaint is well-founded, the perpetrator should be subject to appropriate (and effective) disciplinary action, the end result of which may be the termination of his or her employment.
• Be consistent where possible and be able to justify any differences in approach on an objective and rational basis. For example, a more senior employee may be more culpable than a junior employee because of his or her status and the greater imbalance of power.
• Don’t take any retaliatory action against the complainant, unless there is clear evidence that the complaint was made maliciously or in bad faith. The complainant is the victim and not the cause of the problem.
• Don’t be tempted to turn a blind eye or try to make the issue go away by paying off the complainant. This could be counter-productive in the long run as any commitment to confidentiality on the part of the employee may not be enforceable legally (and even if so, consider the reputational risk of trying to gag an employee with a serious complaint, and then taking action against him or her if they do breach any such restriction).
• Lead by example: this may mean making some difficult decisions in relation to senior employees.

Actions to Take if Faced with Complaints or Allegations Made via the Media, including Social Media

• Prepare a plan of action to cover potential public allegations against either current or former employees.
• Nominate a person/crisis management team to deal with the media fallout.
• Prepare an outline holding statement to be published in the event that allegations of this nature are connected with the workplace or concern a current or former employee.

Actions to Take when Faced with a Public Allegation Regarding a Current or Former Employee

• Issue the holding statement.
• Where the allegations concern a current employee:

- publicly acknowledge that the issue is being investigated but do not admit or deny anything;

- conduct an internal investigation as you would for an internal complaint, and take appropriate action against the employee concerned. The fact that the behaviour complained of was outside the workplace does not mean that the employee should not be disciplined or even terminated.

• Where the allegations concern a former employee, confirm publicly that the issue will be looked into: a formal investigation may not be appropriate unless this involves a workplace relationship. Again, do not admit or deny anything.
• Do not forget to communicate internally: an external allegation may bring forth internal workplace complaints about the same individual, and employees should be supported and not be deterred from doing so.

Conclusion
All employees have the right to a working environment that is free from sexual harassment, and all employers should be striving towards that goal, to do the right thing and to safeguard the health and well-being of their employees. Employers should also be cognisant of the potential for significant reputational damage of public allegations of harassment by former or current employee and seek to limit such damage by taking the appropriate steps.

Heed the words of David Rhodes, CBS News President, who has been widely applauded for the swift and frank response to the allegations against Charlie Rose. Following the decision to fire Rose, Rhodes wrote: “There is absolutely nothing more important, in this or any other organisation, than ensuring a safe, professional workplace…. I’ve often heard that things used to be different. And no one may be able to correct the past. But what may once have been accepted should not ever have been acceptable.”