Last month, more than 60 women in the film industry alleged they were sexually harassed or assaulted by Harvey Weinstein dating back three decades.
According to reports, Weinstein would invite young actresses or models into his office or hotel room on the pretext of discussing their careers, but the meetings would then turn to sexual harassment or assault.
How could something like this allegedly happen repeatedly over decades? It was reported that these meetings were enabled by employees and agents who set up the meetings and by the suppression of complaints with payments and threats.
It is not unusual for employers of all sizes to experience reputational and financial harm based on dormant claims of harassment coming to light. The snowballing of liability can be mitigated by understanding some of the common misperceptions that may result in employees’ unexpressed claims of harassment.
The accusations against Weinstein underscore some of the common misperceptions that are held by employers of all sizes.
< Misperception No. 1: It is less disruptive for the organization to discourage harassment complaints.
In actuality, when employees tell you, as the employer, that they believe they have been harassed, this gives you the opportunity to address and, if necessary, remedy the problem within the organization.
After all, just as the situation with Weinstein, an employee’s silence does not mean that harassment did not occur or was not perceived to have occurred. Discouraging employees from reporting, while perhaps less disruptive in the present day, will only increase the likelihood of a snowballing of complaints.
< Misperception No. 2: When a complaint is raised, the best response is to find a way to appease the employee raising the complaint.
Simply appeasing the employee will not necessarily protect your organization from legal liability, even if the employee signs an agreement releasing all claims against the organization.
This is because the next employees who claim to be victimized may have stronger claims based on the employer’s practice of keeping claims quiet, as opposed to investigating and remedying harassment.
The best response to a complaint is to have a neutral investigator conduct a prompt and throughout investigation. While an investigation may initially seem like a disruption, in actuality, finding out, among other things, whether the report was true may lead to discovering a systemic problem that can be corrected within the organization, as opposed to by an administrative agency or the courts.
< Misperception No. 3: If employees are not reporting harassment, there must not be a problem.
In reality, employees of an organization decide not to report for a variety of reasons.
While not always true, employees’ silence could mean that they believe that a report of harassment could cost them their job. Employees’ decisions not to report may indicate a systemic problem of promotions and opportunities being based on favoritism instead of merit.
Although perhaps an organization with no reports simply just does not have a problem, the absence of reports may not equal the absence of harassment.
So, what’s an employer to do?
< Have a harassment reporting policy that encourages timely reporting.
While having a harassment reporting policy is, in and of itself, an important first step, for the policy to be effective, it must encourage reporting.
An anti-harassment policy may encourage some personal responsibility in suggesting that the employees should tell the person harassing them to stop. However, particularly in situations where there is an imbalance of power, such as with Weinstein, employees should not be relied upon to address harassment themselves.
All anti-harassment policies should include a reporting procedure for the organization to address and, if necessary, remedy harassment.
One of the most critical components of an anti-harassment policy, both for encouraging reporting and defending against legal claims, is a harassment reporting procedure. To be effective, procedures should give employees options for reporting.
Even if your organization would like to have human resources as the first line of defense in receiving complaints of harassment, reporting procedures should give other options, including the option to report to another manager to whom the employee feels more comfortable reporting.
Employees should never be in the position that the only person they have to report to is the alleged perpetrator.
All employers should regularly review their anti-harassment policy and reporting procedures to make sure the policy is effective in encouraging timely reporting. It is a good idea to ask your employees directly if there are any changes that could be made to the policy to make the procedures more effective in encouraging reporting.
< Conduct annual training sessions for employees and supervisors.
Employees should be reminded regularly that they are responsible for promptly reporting harassment. Employees also should be reminded that they will not be retaliated against in any way for making a good faith report, even if the ultimate conclusion is harassment did not occur.
Supervisors should be instructed on the appropriate procedures for receiving complaints of harassment. Also, supervisors should be regularly informed of the types of actions that may constitute retaliation against an employee who reported harassment and that retaliation will not be tolerated.
< Investigate all claims of harassment, no matter how seemingly harmless.
No matter how seemingly innocuous the complaint, where any employee is silenced or disregarded, management conveys an attitude of dismissal toward complaints, which has the ripple effect of discouraging sincere reports. This creates an atmosphere where employees are either afraid to report or feel reporting will have no effect.
In that type of scenario, management has no hope of discovering and correcting unlawful harassment. Even where the employee specifically asks that no action be taken, all complaints must be investigated.
In addition, the prompt and thorough investigation of claims is part of a strong defense against employees’ legal claims of unlawful harassment. Where an employer investigates and takes action to remedy any harassment that is discovered, administrative agencies and courts are more likely to find that there was no violation of law by the employer.
In the end, the most important precautionary measure employers can take against legal liability is open communication with employees. The Weinstein case exemplified what can happen when employees are either not encouraged – or actively discouraged – from speaking up about their concerns.
When employers maintain a policy and practice of encouraging reporting of harassment, the workplace culture itself will be reflective of the employers’ commitment to correcting unlawful harassment, as opposed to keeping complaints quiet.
The effect is a lower risk of legally actionable harassment and retaliation claims, both known and unknown.
Keely Jac Collins is an employment attorney with the KingSpry law firm in Bethlehem who represents organizations of all sizes and in all sectors. She frequently writes and presents on topics related to her legal practice. She can be reached at firstname.lastname@example.org.