Sexual harassment within the workplace is not a new issue. In both Europe and the United States, the law has provided protection for employees against harassment for many years. A TUC/Everyday Sexism Report in 2016 conducted a survey of women in the UK workplace and found that over half (52 percent of those surveyed) had experienced some form of sexual harassment in the workplace but that four out of five of these women did not report that sexual harassment to their employer, and nearly 50 percent did nothing at all, not even confiding in a family member or friend or other third party.
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
Actions to Take if Faced with an Internal Complaint
Actions to Take if Faced with Complaints or Allegations Made via the Media, including Social Media
Actions to Take when Faced with a Public Allegation Regarding a Current or Former 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.
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.”