Michelle Beck-Howard, a client advocate for G&A Partners, recently shared her insights on addressing sexual harassment in an article for Upsize Minnesota.
With new stories coming out on almost daily basis about celebrities, politicians and other prominent public figures, sexual harassment has gone from something normally not addressed in public to dinner table conversation. What started as a reaction to allegations against Hollywood heavyweight Harvey Weinstein in October has become more than a viral hashtag, and has left many employers anxious about how the #MeToo movement might manifest in their organizations.
With something as complex as “sexual harassment,” it’s important to start any discussions by defining what exactly the term means. From an employment liability perspective, sexual harassment is a form of discrimination that violates an employee’s rights under Title VII of the Civil Rights Act of 1964 and occurs when unwelcome conduct of a sexual nature affects an individual’s employment or interferes with his or her job performance.
Intent is, perhaps, the most common misunderstanding amongst employees when it comes to sexual harassment. Many people are under the impression that conduct isn’t sexual harassment if the harasser didn’t intend to harass the victim. It is essential for employers to understand, however, that the harasser’s intent is not important when it comes to determining whether the behavior constitutes sexual harassment; instead, it is the impact on the victim that matters.Intent is, perhaps, the most common misunderstanding when it comes to sexual harassment. Click To Tweet
Employers should always take all reports of sexual harassment seriously. In fact, one of the biggest mistakes an employer can make dismiss a report without conducting a proper investigation to determine the validity of the claim.
Ideally, a neutral third-party should conduct an investigation into allegations of sexual harassment. The third party is trained on how to conduct these investigations (such as an HR consultant or the organization’s employment counsel) to ensure that no bias or pre-conceived notions about either the harasser or the victim color the findings. Not only will this person have a better understanding of the legal definition of harassment and know what questions to ask, but also any employee being interviewed as a witness is more likely to feel comfortable speaking to someone with whom they don’t have a personal relationship.
If the employee who made the allegation presents compelling, documented evidence of severe or pervasive harassing behavior, the person conducting the investigation may recommend that the organization terminate the accused employee immediately. Even if the evidence presented doesn’t rise to this threshold, it may still be appropriate for the employer to suspend the accused employee while the investigation is being conducted. Otherwise, employers should wait until the investigation concludes before taking any further action.
If, at the conclusion of the investigation, the investigator finds compelling evidence of severe and pervasive harassing behavior, the employer would likely take action to address the behavior (up to and including terminating the accused employee). If the investigator doesn’t find any compelling evidence of harassing behavior, however, the employer would likely not take adverse action against the accused employee.
The investigator might also find evidence of behavior that, while unprofessional, doesn’t quite meet the standard of sexual harassment. In these cases, employers should still take steps to address the behavior with the accused employee, including coaching, counseling, discipline or even termination. (It’s important to note that this kind of questionable behavior may also constitute creating a hostile work environment, which is also illegal.)
Throughout the entire process, employers should strive to keep the employee who reported the behavior as updated as possible about the progress of the investigation to ensure they know the company is taking their concerns seriously. This includes an update at the conclusion of the investigation to inform the employee of any findings and to assure them that appropriate action (if any) will be taken to address the situation.
Although sexual harassment is rarely something supervisors or business owners feel comfortable dealing with, it’s something employers have to be equipped to deal with (either with internal resources, through employment counsel or by using a professional employer organization), particularly in the wake of the #MeToo movement.
This article was originally published in the January – February 2018 issue of Upsize Minnesota. Click here to view the full article in the online version of this issue.