United States: The Rise Of The #Metoo Movement: An Opportunity, Not An Obligation

Undoubtedly, the No. 1 topic in the employment world today is sexual harassment and the rise of the #MeToo movement. Indeed, it is one of the top issues in American society generally, touching all industries. With new allegations making headlines at a shocking rate, a spotlight has been cast on the culture of the American workplace – and employers' reactions to these events – leaving employers uneasy about how to proceed. But rather than feeling anxious about these developments, employers should recognize that this is a time of opportunity that can bring about dramatic and positive changes for both employers and employees.

The advent of the #MeToo movement and the resulting national conversation about the American workplace give employers the opportunity to positively and clearly redefine the boundaries of acceptable workplace conduct and to increase the channels of communication with employees. At this moment, employers are uniquely positioned to send a message to their employees that they are valued and that the employer is committed to providing a respectful workplace – not merely because the employer wishes to mitigate legal risk or prevent a PR disaster, but because it is the right thing to do. But improving workplace culture and addressing workplace harassment are more than ethical imperatives; they also are good for business. A respectful workplace, in which discrimination and harassment are prohibited, demonstrably increases employee productivity, reduces the costs of absenteeism associated with harassment and enhances retention of valued employees. Moreover, employers with respectful workplace cultures can expect increased job satisfaction and organizational commitment by their personnel.

While many employers have generic anti-discrimination and harassment policies stating they do not tolerate illegal discrimination or harassment, a more robust approach is necessary. This article addresses practical steps employers can take to reap great benefits not just for employees and the company, but for the broader American society as well.

Secure Tangible Buy-in From Senior Management

While human resources and legal teams are valued partners, the senior leadership of the business has the clout to convey to employees the boundaries of acceptable workplace conduct. Accordingly, it is imperative to secure buy-in from senior management on the company's workplace behavior policies and ensure that all managers understand and accept their responsibility to serve as standard bearers for the company by modeling professional and respectful conduct.  

Senior management can further demonstrate that professional workplace behavior is a core value by attending and supporting trainings on the subject. At a recent workplace conduct training, the CEO demonstrated his support for the company's respectful culture by (1) personally sending the invitation for the training to all managers, (2) introducing the presenter and noting the importance of the training, and (3) staying for the entire presentation. His actions made clear that the employer valued the policies emphasized in the training and that it was not merely intended to satisfy a compliance requirement.

Beyond training, senior management can convey the importance of anti-harassment policies by devoting appropriate resources for investigations and taking appropriate disciplinary action when misconduct or retaliation is discovered, regardless of how high-ranking the wrongdoer is, how much revenue he or she brings in, or who she or he knows in the C-suite. Holding everyone accountable and to the same standards will reassure all employees that their complaints will be taken seriously, and will empower human resources personnel by making clear that their recommendations will be fairly evaluated and followed where appropriate. Along these lines, to ensure that HR professionals provide sound recommendations to the businesses they support and command the respect of senior management and the employees with whom they interact, it is critical that HR professionals be well-trained.

Workplace Behavior Policies: Focus Broadly, Educate Practicably, Enforce Proactively

Broaden the Focus of Workplace Behavior Policies

More than ever, workplace behavior policies must foster a culture where everyone is treated with respect and civility rather than simply prohibit discriminatory conduct. We suggest that workplace behavior policies be broadened in furtherance of this goal as follows:

Include Provisions That Require Respect in the Workplace and in Professional Conduct: Although most employee handbooks address explicitly harassing conduct prohibited by law, companies should consider broadening policies to prohibit uncivil behavior beyond just that prohibited by the law. Examples of inappropriate behavior that should be banned may include lewd, profane or abusive language; yelling at another person; threatening or using intimidation; discussions of employees' sex lives; and any other conduct that undermines the integrity of the working relationship.

Expand Reporting Procedures: While most employers provide employees with a procedure for reporting violations of misconduct, they are often limited to complaining to human resources or a direct manager. But an employee may not feel comfortable reporting to an HR professional with whom she or he may have had little interaction or may fear retaliation for reporting to a manager. As a result, the employee may not raise his or her complaints. To avoid this pitfall, consider expanding reporting procedures to include multiple possible avenues, such as various levels of management, human resources staff, the legal department and/or a trained ombudsman.

Liability and Responsibility for Out of Office Conduct: While legal and HR professionals are well-aware that employers and employees may be responsible for out-of-office conduct when employees are with their colleagues, managers, subordinates, clients and vendors, employees are often surprised by this fact, defending themselves by saying, "But I wasn't in the office" or "We were out for drinks after work."  Policies should be clear that violations can occur at business meetings, business meals or at private sites, wherever employees and business affiliates meet.

Consider Adopting an Intra-company Relationships Policy: While not every workplace relationship needs to be banned, and, of course, no employer wants to stand in the way of true love, it is important to be cognizant of the risks associated with permitting romantic relationships between employees. This is particularly true in relationships in which one employee is in a supervisory role, which creates a power imbalance and could be viewed by the subordinate and/or an adjudicator as inherently coercive. Employers should consider adopting an intracompany relationship policy and weigh the merits of banning or placing constraints on relationships between supervisors and subordinates. For example, some companies prohibit employees within a reporting line from engaging in a relationship or require employees to report relationships with potential conflicts of interest. Other companies institute rules that forbid employees from asking an employee out on a date if they are turned down the first time.

Bolster Requirements for Reporting Abuses: While managers are required to report any harassing conduct they witness, most policies simply "suggest" or "urge" non-supervisory employees to report harassing conduct regardless of whether they are the target of such conduct but do not require them to do so. Consider shifting the focus of such policies to requiring bystanders to report conduct. Emphasize the positive and career development opportunities that could spring from voluntarily coming forward. To convey the importance of this policy, consider adding a section to formal written performance reviews to evaluate an employee's role as a "culture carrier" and his or her contribution to fostering a respectful work environment.

Educate Practicably

An employer may have robust, thoughtful policies prohibiting harassing and uncivil conduct, but the policies are irrelevant if employees do not understand or do not follow them. We have all witnessed the classic harassment training scenario in which policies and hypotheticals are presented on PowerPoint slides while participants compulsively check email or play games on their cell phones, or click through self-guided online training while on a call or listening to a podcast (or worse, asking someone else to do it for them) without absorbing the content. The thought is often "I'm not going to sexually harass anyone, so why is this training relevant to me?" To seriously shift workplace culture in a positive direction, employees need to understand that they play a critical role in policing the boundaries of workplace culture.

To maximize employee engagement in harassment training, the training should be live and interactive, mandatory for managerial employees and considered for non-managerial personnel (to ensure appropriate workplace culture permeates the entire workforce); cell phone use should be discouraged; and senior leadership should attend the sessions to emphasize the company's commitment.

Be Proactive; Avoid Stepping Into Other Legal Claims

Vice President Mike Pence purportedly maintains a policy of not eating alone with women other than his wife and not attending events without her. Reportedly, throughout his time in Congress, he required that any aide working late with him had to be male. The immediate reaction of some male managers who fear a sexual harassment claim may now be to utilize the "Pence Rule."  However, condoning the Pence Rule by permitting male supervisors to avoid one-on-one meetings with female subordinates or taking them to client dinners or other meetings to prevent harassment claims could lead to claims of gender discrimination. Such conduct could also lead an employer to miss out on opportunities to develop and promote talented female employees to the detriment of the business, ultimately resulting in the departure of valued female employees. Employers must specifically address this subject in training and prohibit such practices. Moreover, employers should be proactive and check in with female employees on a regular basis, using mechanisms such as voluntary focus groups or women's initiative committees, to make sure female employees feel they are receiving appropriate opportunities.

Handle Complaints Proportionally and Follow Up Promptly After Resolution

While employers hope to foster a workplace free of sexual harassment, they must be prepared to address complaints when they arise. An appropriate and prompt response can meaningfully enhance workplace culture, resulting in an environment where employees feel more comfortable raising concerns when they first arise and increasing the likelihood that they will remain employed following such complaints.

In light of the extreme publicity that sexual harassment claims are receiving, it is understandable that employers might believe that any discipline short of termination may be perceived as too weak a response. However, such an extreme position may discourage bystanders or alleged victims from reporting minor abuses for fear of getting the alleged wrongdoer fired, and it could result in the loss of talented employees who may have made a "minor" mistake. Consider a female employee whose male supervisor has made several comments in the workplace objectifying the bodies of female actresses and models. The two have a solid working relationship, but his comments bother her, and she would like them to stop. If the employer is known for firing every employee accused of engaging in any wrongful conduct, this complaint may never be reported or may only be reported in the context of more egregious harassment down the road. In the meantime, the productivity of the female employee and her team may decline or, worse, that female employee may just choose to resign. Where employees feel comfortable that the "punishment" fits the "crime," they will feel more comfortable raising their concerns.

Moreover, some complaints clearly lack merit or sufficient evidence. In such instances, employers should be prepared to state that the claims are uncorroborated or unfounded. Failing to do so will harm innocent employees and damage the credibility of employees with valid claims, and it may even expose the employer to legal risk.

Once an investigation concludes, employees who complain or participate in an investigation must move forward, but doing so can be awkward. A simple action employers can take to advance a culture in which employees feel comfortable raising complaints and participating in investigations is to have HR and/or participating managers follow up with alleged victims and bystanders at regular intervals after the close of the investigation. Making sure these employees are comfortable in their work environment helps strengthen an employer's commitment to its anti-retaliation policy in a visible way and will reassure other employees afraid to come forward or participate.

The culture of the American workplace is inevitably changing. Employers can either embrace the opportunity to be the voice behind the change or reluctantly accept the obligation to comply as it is forced upon them. A workplace grounded in respect for colleagues, that renounces all forms of offensive and unprofessional conduct, and that supports open lines of communication between employer and employee is not only the most legally compliant environment but also the most beneficial for the business. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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