The #MeToo movement created a seismic cultural shift in society’s awareness of the widespread presence of sexual harassment and assault in business, media, Hollywood, and government. In the still unfolding aftermath, all employers must adapt to five primary lessons learned that relate to effective harassment prevention policies, credible workplace investigations, and updated training programs. Camille Hamilton Pating, Principal and Chair of Meyers Nave’s Workplace Investigations Practice, published an article in the Daily Journal that explains the five lessons summarized below and provides advice to employers about crucial next steps. Please click here to read her article.
Lesson 1: Update Personnel Policies to Address Civility and Fear of Reporting
In a June 2018 nationwide survey of 150 human resources executives, 52% have reviewed their sexual harassment policies (up from 34% in January 2018) and only 42% reported they were comfortable with their policies (down from 63% in January). Among other critical components, personnel policies are being updated to contain “silence breaking” provisions that address fear of reporting based on employees’ concerns about retaliation, damage to a career, mistrusting the process, or expecting no change will result. Another key update addresses complaints about an underlying lack of respect and civility in the workplace as the core of harassment problems. Employers are creating separate civility or respectful workplace policies and training programs, or adding these requirements to existing anti-harassment or anti-bullying policies.
Lesson 2: Update Investigation Policies to Consider “Stale” Claims
In response to #MeToo, employees are coming forward with allegations long after the statute of limitations has expired for making complaints under the California Fair Employment and Housing Act. Despite the evidentiary difficulties in such inquiries, employers should update investigation policies and procedures to investigate such complaints in appropriate cases. Employers may still face liability if they choose not to investigate, particularly when the accused is still employed by the organization and has the capacity to retaliate against the victim or commit the same misconduct against others.
Lesson 3: Conduct Independent Investigations
Post #MeToo, employee complainants are frequently expressing mistrust in workplace investigations that are conducted by the employer’s internal human resources or legal departments. These inquiries can be seen as influenced by organizational bias or the prominence of the subject, or that the primary purpose of the investigation is to protect the employer rather than uncover the truth. Complaints are also being raised about the prosecutorial style of some investigators which is inconsistent with a neutral factfinding process. Employers should consider using independent outside investigators, particularly in high-profile situations where the credibility and integrity of the investigation process and its findings could be questioned.
Lesson 4: Change Training Programs to Encourage #IsItOK? Conversations
#MeToo demonstrates that harassment training programs, just like policies, have not prevented harassment. Why? Perhaps because they (1) focused on compliance and technical interpretations of legal concepts, (2) provided scenarios and hypotheticals of obvious unwelcome sexual misconduct with little application to real world employee interactions, and (3) did not cover micro-inequities and unconscious bias (which, while not yet illegal, are newly emerging claims in workplace investigations). Employers should revise training programs to model respectful and civil behavior and provide practical guidance and tools to help employees have honest and welcomed conversations with each other about what is acceptable and unacceptable conduct.
Lesson 5. Avoid Unintended Consequences
A frequently expressed concern is that the #MeToo movement is causing some male employees and leaders to withdraw from and avoid interacting with women because of the fear of being accused of misconduct. This backlash has significant consequence for women, particularly in industries where mentorship, sponsorship, group projects and relationship-building are critical to success. Employers should make sure recruitment, retention and promotion related policies and programs are designed to prevent such backlash, and employers should leverage the opportunity for #MeToo to help create a positive, respectful and inclusive culture for the entire organization.