As the Harvey Weinstein scandal continues to unfold, it is a virtual playbook on mistakes employers can make when it comes to sexual harassment in the workplace.
From offers of sex in exchange for coveted movie roles to charges of sexual assault, to claims that Weinstein’s company knew about his behavior for decades and victims were paid to keep quiet, to contentions that his own employment contract protected him as long as nondisclosure agreements and settlements prevented victims from coming forward, a culture of silence and complicity was perpetuated. Contributing greatly to that silence was the fact that Weinstein was the company’s key decision-maker and one of the most powerful men in Hollywood.
Is it possible this is the tipping point, and there will finally be a cultural shift in recognizing there should be absolutely zero tolerance for sexual harassment in the workplace? Only time will tell, but here are the top mistakes an employer must avoid in order to minimize the risk of harassment claim.
Failing to Have a Harassment Policy
It is essential to develop, implement and enforce a zero tolerance harassment policy that clearly defines lawful and unlawful behavior. The policy should explain that harassment includes both quid pro quo harassment (i.e., sleep with me or you’re fired), as well as the creation of a hostile work environment whether physically, orally or by written communications, jokes, emails, social media conduct, cyberbullying or other inappropriate behavior.
The policy should further state that not only is sexual harassment unlawful, but the employer also prohibits harassment based on race, religion, age, disability and sexual orientation. In addition, the policy should clearly outline the consequences for violating the policy and the discipline that will be imposed if harassment allegations are proven.
Failing to Provide a Multichannel Complaint Procedure
As part of the harassment policy, the employer should establish a multichannel complaint process which allows an accuser to bring complaints to various members of management and HR and not just one specific individual, as this may be the alleged harasser. That’s also why accusers must have multiple avenues to lodge a complaint, including a telephone or email hotline, and should not be required to bring a written complaint.
Failing to Provide Harassment Training
Providing both employees and supervisors with harassment training is an important part of minimizing the risk of harassment in the workplace. Training should be conducted on an annual or semi-annual basis and should provide guidelines on lawful and unlawful behavior.
Training should be provided early on in the onboarding process, and should be interactive and include hypothetical situations. Employers should also provide supervisors with additional training on:
• How to keep their eye out for troubling situations;
• How to handle harassment complaints; and
• How to proceed once a complaint has been made.
Supervisors need to know that they must immediately notify HR or the employer of any harassment complaint and not start investigating or questioning witnesses on their own. This is because the minute harassment is alleged, the employer could be on the hook.
Failing to Investigate
Under Title VII of the Civil Rights Act and similar state and local laws, an employer is required to conduct an investigation when it knows or has reason to know that an employee is being subject to discrimination, harassment or other unlawful conduct in the workplace.
Additionally, the employer should not discount or discredit an individual who does not complain immediately as there may be valid reasons behind this failure to come forward earlier. Depending on whether the harasser is co-worker or supervisor, the employer may be liable, and it is absolutely essential that all complaints are documented and investigated.
Failing to Designate an Independent Investigator
It is important for the harassment investigator to be unbiased and impartial in order to conduct a thorough neutral investigation. Therefore, it may be best practice to look outside the company for a neutral third party to investigate as the employer, a supervisor or an individual in HR may need to be a witness in some cases.
Failing to Conduct a Complete Investigation
A harassment investigation should leave no stone unturned and every step should be properly documented and recorded as this may serve as evidence in case of a later lawsuit. Thus, it’s crucial that the investigator know the right questions to ask and issues to investigate. As part of a harassment investigation, the investigator should collect documents, interview witnesses, review emails, phone records, social media accounts and discover anything else that may support the accuser’s story.
Not Maintaining Confidentiality of the Complaint or Investigation
It is critical for an employer, HR and the investigator to maintain confidentiality during the course of the investigation and reveal information only on a need-to-know basis. Any breach of this confidentiality could put the victim at risk of retaliation by co- workers or supervisors.
Retaliating Against Those Who Complain and Witnesses
You should advise employees and supervisors that they will not be retaliated against for complaining about harassment to management or for bringing complaints of others experiencing harassment in the workplace. This protection is vital because it will encourage victims and bystanders to come forward.
If the employer does need to take disciplinary action against an accuser or witnesses unrelated to the harassment complaint, it should be sure that it has a legitimate non-discriminatory reason for doing so and that it properly documents the issues.
Failing to Take Interim Measures
Once on notice of a potential harassment complaint, an employer should take any interim measures that are needed such as separating the victim and the alleged harasser to prevent retaliation and the chance of an incident reoccurring. In doing so, the employer should be careful not to discriminate or retaliate against the victim. If anything, the alleged harasser should be moved and his or her position changed temporarily.
Failing to Follow Up with the Accuser
It is crucial to follow up with the accuser after the investigation is complete and provide them with the determination on the complaint. The employer should let the accuser know to advise the employer of any further complaints or incidents. More importantly, the employer should explain what has been done to remedy the harassment and about any discipline imposed.
Improperly Using Employments Contracts and Arbitration Agreements
An employer should not attempt to use an employment contract or arbitration agreement to silence accusers and witnesses or protect those who engage in harassment. What’s more, an employer should not use an employment contract like Harvey Weinstein’s that permitted him to keep his job as long as he paid off witnesses and “cured” the unlawful behavior. This only perpetuated the problem and led to mass chaos and bad press for the entire company.
Not Holding Employers, Owners and Supervisors to the Same Standards
As the Weinstein scandal is revealing, employers, owners and supervisors must be held to same standards as all employees. This is particularly true because employer liability is even higher when the employer or supervisor is the harasser. The employer must demonstrate that it has a zero tolerance policy, and no one will receive special treatment as all will be held to the same standards and face the same consequences.
Failing to Fully Recognize All the Risks
An employer may be liable not only for a supervisor’s or employee’s harassment of other employees, but also for harassing and abusive acts towards third parties, such as independent contractors, temporary, part-time and seasonal workers as well as customers, clients, suppliers and vendors.
Equal opportunity and antiharassment laws have a broad reach and, as the Weinstein scandal has brought to the forefront, harassment of any kind towards anyone in the workplace is unacceptable.