Traditional approach to handling harassment complaints needs updating
By Bennett Loudon
BridgeTower Media Newswires
The wave of sexual harassment allegations against well-known public figures like Harvey Weinstein and Steve Wynn and the resulting #MeToo movement that has emboldened the average worker to come forward with claims of their own are forcing human resources professionals to rethink their approach to these types of employee complaints.
"There's increasing sensitivity, for sure, as a result of increasing awareness," said Colleen Leonard, human resources administrator for Legal Assistance of Western New York.
"This whole issue is a moving target. You're going to receive more complaints. You have to be cautious and cover all of your bases. It's a difficult balancing act."
Katherine S. McClung, a labor and employment attorney at Bond Schoeneck and King, explained that late last year, Hollywood producer Harvey Weinstein was accused of sexual harassment and more serious crimes by more than 60 women.
"Since then, the floodgates have opened and there has been this #MeToo movement of allegations against a number of high-profile individuals in Hollywood as well as other industries, including politics, journalists, chefs, you name it, there have probably been allegations in that industry," McClung said.
"I think a lot of employers have been revisiting what procedures they have in place and revamping them."
McClung and Theresa E. Rusnak, another labor and employment attorney at Bond Schoeneck and King, delivered a presentation for HR professionals recently that covered the ramifications of what they called "The Weinstein Effect."
The traditional approach to handling harassment complaints needs updating, they said. Companies need to become proactive in addressing potential harassment complaints.
Victims are choosing publicity and exposure on social media platforms to humiliate and shame harassers instead of taking the more traditional route of accepting a confidential monetary settlement.
The move away from confidentiality could lead to fewer settlements of harassment cases.
"If it's going to cost $50,000 to defend against a complaint you'll be willing to settle for an amount less than that even if you think the complaint has no merit," McClung said.
"However, if that number is going to be public knowledge, and if people might view that number as an admission of guilt, there may be more hesitancy to enter into a settlement."
A 2016 report from a task force of the federal Equal Employment Opportunity Commission found that written policies are no longer adequate to protect an employer in the event of a harassment complaint because written policies alone do not prevent a "culture of harassment."
Employers must actively pursue a harassment-free workplace, with commitments demonstrated at the highest levels of management; devote financial resources and time to address the topic; take strong action when harassment is uncovered; and even punish bystanders who witness harassment but don't report it, the report said.
The EEOC has created an online portal to file complaints, upload documents and monitor the status of a case. And the EEOC wants more companies to offer a way for employees to submit complaints anonymously.
While it might send the message that a company is getting tough on harassment, a zero-tolerance policy may actually hinder reporting because co-workers believe the policy means the culprit will automatically be fired. So they might not report the incident if they think firing is too extreme.
The traditional approach of establishing a policy written in hard-to-understand legal jargon without specifically stating what is prohibited and un-relatable examples should be replaced with an easy-to-understand policy with realistic examples and multiple ways to make a complaint, Rusnak said.
Training is best done in person, at least once a year, and should include direction on what is expected of someone who witnesses harassment. Training for supervisors and employees should be delivered separately.
And human resources staff and managers should frequently visit the visit the places the employees are working to monitor the atmosphere.
But employers should be careful about checking an employees' social media accounts. Even though it might reveal a potential HR problem, it could just as easily disclose information about an employee that identifies them as a member of a protected class.
If an employer subsequently takes disciplinary action against them, the employee might claim the discipline was because they were in that protected category.
"There are a lot of legal risks associated in the application process when they consider hiring someone and after they come on to work looking at social media pages," McClung said.
Human resources officers should treat every complaint, whether delivered formally or not, as a formal complaint. They should recognize that employee conduct outside of work can be actionable if it has some effect on the workplace.
Companies now conduct more extensive background checks on potential employees, especially on candidates for high-level management positions. In some cases, executives and top managers are being asked to provide a signed statement that they have no past harassment allegations.
One of the most significant issues facing human resources professionals is their capacity to adequately investigate harassment complaints, according to a survey of employment lawyers conducted recently by the Employment Law Alliance, a network of labor and employment attorneys.
Out of 382 lawyers responding to the survey, only 14 percent said in-house HR professionals are "very competent" at conducting investigations into misconduct complaints. The survey showed that 81 percent of the lawyers felt the HR professionals are "somewhat competent."
Very few harassment cases get to the litigation stage, so HR investigations are rarely "tested," said Louis P. DiLorenzo, managing partner in the New York City office of Bond Schoeneck and King.
"Every case I've had where the investigation has been put on trial, afterwards the investigators do very much better investigations after they've been cross-examined and forced to defend their investigation and see their investigation put under the microscope," DiLorenzo said.
In many cases, problems with the investigation include conflicts of interest, inadequate note taking, pertinent witnesses not being interviewed, and inadequate explanations about why the investigator questioned the credibility of a witness.
"These are very competent HR people, but they're very busy and investigations take a great deal of time to do right," DiLorenzo said.
Plus, juries have very high expectations that have been shaped by television shows, he said.
DiLorenzo said the attitude toward potential harassment complaints is changing in another way. For the first time in his 42-year career he's being asked to revisit old cases "to see whether they have vulnerability in the way they handled the cases five or 10 years ago."
Cases that were investigated and resolved 10 or 20 years ago, based on the cultural attitude at that time, may look different in hindsight.
For example, a company may be worried that their discipline of an employee was insufficient, and that case might resurface if a new complaint is filed.
Many companies are asking other attorneys to conduct similar reviews.
"All my colleagues are talking about it," DiLorenzo said.
"We want to make sure, if that person still works for us, that we have taken appropriate action. If it's serious enough we may have to revisit whether we can allow that person to continue working for us, or it may be a disciplinary suspension, and maybe a fine together with a suspension," he said.
Published: Mon, Mar 26, 2018
