I Love Lists! Dissecting One Sexual Harassment Prevention List

I love lists. I love “plans.” After all, as a lawyer, my day is usually suffused with them. I’ve even given them to you, employers! Right here in this blog!

What To Do If Someone Complains About Sexual Harassment

For example, here I gave you a list of steps to take if you receive notice of or a complaint about sexual harassment.

Working List:  How To Keep The EEOC At Bay

Then here, I gave you a “to-do” list about working with your HR departments to keep the EEOC at bay—remember, once HR, a supervisor, or any manager or officer knows about a complaint of discriminatory or harassing conduct, the employer must investigate and take corrective measures, if warranted.

How To Minimize Gender Discrimination

Here I provided y’all with a checklist to minimize sexism, gender bias, and unequal pay in the workplace.

So, safe to say, like others in my profession, I am a fan of lists and plans.

One 15-Point List – Are All The Points Good Ones?

Yesterday, I read one crisis management CEO’s 15-point “actionable, and easy-to-execute game plan” for companies to adopt in order to eradicate sexual harassment from their organizations.

I really like some of these points; others…less so …because they do not always include consideration of certain legal issues that companies need to bear in mind when managing claims relating to unlawful harassment and discrimination.

Let’s discuss a few.

Accountability

First—accountability. I agree, wholeheartedly: Boards and CEOs should chuck employees who are sexual harassers no matter who they are and what they bring to the business. As we’ve told you time and again, maintaining a “top-down” culture prohibiting unlawful harassment is paramount. When anti-discrimination and a refusal to tolerate unlawful harassment comes from the very top of your organization, it demonstrates commitment to employees from the C-Suite to the mailroom to maintain a culture of respect for all. It says, “we’re serious here.”

Sexual Harassment Hotline – Handled Outside of HR

Number three on the list is to introduce a sexual harassment hotline that bypasses HR, is administered by an outside provider, and is reported directly to the Board. I love this idea in theory.

But what about small companies and start-ups? Shouldn’t such a hotline work with HR instead of bypassing HR? How can HR advise the CEO or Board of any complaints it receives if it is cut out of the loop?

Consider, too, that if you outsource this task, your counsel’s discussion with such a provider may not be protected by the attorney-client privilege, which certainly may become relevant for your company in the future. I’m not saying don’t have an anonymous outside hotline, but I think HR and a hotline should work in tandem to provide employees with the means to report unlawful harassment and have their employers do something about it.

Indeed, as EEOC Commissioner Chai Feldblum, said, “A good HR office is the linchpin for an employer’s effective system for learning about harassment and then responding quickly and effectively.

Paid Leave For The Accused

Next, fourth on the list is to put an accused harasser on a paid leave of absence during the investigation of a harassment claim, and, if the claim is substantiated, immediately terminate the accused. If the claim is not substantiated, then immediately reinstate the accused.

Hmmm, so if the accused did sexually harass someone (s)he gets, in effect, a paid vacation until the investigation concludes?

What if you can’t complete your investigation so quickly because employees you need to interview are on vacation? Or sick? What if the sheer number of witnesses renders it unlikely that an investigation can be completed thoroughly and rapidly? I do not think this point in the 15-point plan is realistic.

Once the neutral third-party you hired (right?) conducts the investigation, you should take swift corrective action, which indeed may mean suspending or terminating the perpetrator. But, in the interim, assure the person who reported that you are taking his or her claim seriously, that you want him or her to feel safe in the workplace, and that you are conducting an investigation. You may have to transfer the accused. You may have to put that person on leave. 

This is not a one-size-fits-all situation and can’t really be treated like one. However, one catch-all: follow up with the person who reported harassment to ensure (s)he feels comfortable, and do not do anything that can be construed as retaliation against the person who reported the sexual harassment.

Finally …

I’ll follow up this post with a few more suggested rectifications of this 15-point plan, I think crisis management’s point to “maintain and defend a due process” could be misleading. I’m not sure what this means, to be honest, from the explanation underneath this point. Rich Cohen and I counsel employers to document extensively your complaint, investigation, and correction actions. Document all findings and use them to improve your sexual harassment policies, enforcement, and training.

Next week: some fine-tuning of other aspects of the plan!