Harassment in the Workplace: the #MeToo Movement

Be Proactive: Create a Durable Complaint Policy and Procedure

Even with all the light shown on the liability and the consequences of harassment occurring in the workplace, many organizations are unconcerned, confident that they have the right culture and that this type of behavior is nonexistent in their companies. To support this belief, they note that there have been no harassment complaints within their organizations.

HR’s response should be: “Never celebrate a complaint-free year”. No complaints could mean there is no harassment occurring, or, it could mean that your anti-harassment policy and complaint procedure are not known, or trusted, and therefore not used by your employees. If you have a strong anti-harassment policy and complaint procedure, you will likely get some complaints if harassment is happening. That’s not a bad thing. You do not want employees suffering in silence or going to file their claim through external resources. Most employers would like to have the opportunity to investigate and resolve issues internally.

How to be proactive? Be sure you have strong, user friendly harassment complaint policy and procedures.

 Policy Components Should Include:

A clear definition of what is prohibited conduct; not limiting the conduct to what is unlawful

Be sure your complaint policy defines what harassment is and what unacceptable behavior in your workplace looks like. A complaint should not be limited to behavior that crosses legal lines, but rather, what is unacceptable behavior in your workplace.

Employees should be aware that the complaint can come from behavior that took place not only in the workplace, but also at company-sponsored business and social events. Be sure your policy states that a complaint may be regarding behavior from a non-employee, like a vendor, a customer or a supplier. In addition, it could come from something the employee saw that was posted on email, or via a text, or on social media if the content is about co-workers or customers, and the employee is offended by it.

A statement regarding who can come forward with a complaint

Complaints can come from employees who experienced it firsthand, who witnessed it, or even just heard about it. It can come from someone who witnessed it from afar.

Be sure to inform employees that they should report harassment even if it is not unlawful. The fact that it was only one stray remark doesn’t mean that one comment will be tolerated in your workplace. The complaint procedure should focus on what is unacceptable, and therefore prohibited, even if it is not unlawful.

The anti-harassment policy and complaint procedure must include all forms of harassment, not just sexual harassment. Both policy and procedures should apply to discrimination, retaliation and failure to accommodate as well.

Assignment of more than 1 or 2 people designated to receive the employee complaints

For the complaint procedure to be effective, employees should be given the opportunity to consult with designated supervisors or HR. Employers may want to provide an external reporting option, but in that situation, employers should ensure that complaints made externally are reported to multiple people internally so no person can dismiss or negate the complaint.

A Statement of the Consequences, Corrective Action

The policy should state that appropriate action will be taken by the company if the investigation concludes that harassment took place, even if the conduct is not unlawful and even if it was the behavior of a non-employee. The policy should state that the corrective action may include discipline up to and including termination of the employment or other relationship.

A Clear and Firm Policy Statement Against Retaliation

The main reason employees refrain from reporting harassment is fear of retaliation.

The complaint procedure should not limit the complaints from only the potential victim. The policy should include that it applies to witnesses, and anyone who is involved in the complaint procedure. It should also include that the complaint does not have to meet unlawful standards, and that retaliation against the complainant is prohibited. Retaliation includes any form of changes or conditions of employment, even actions not taken in the workplace, like badmouthing an employee in the professional community.

Securing a Written Acknowledgment from All Employees

No matter how good your policy is, it is worthless if employees are not aware one exists. Employers should ensure that all employees are aware of both the policy and the procedure for complaints, have read both, and understand their obligations in adhering to the complaint procedure. Further, periodic training on anti-harassment and respect in the workplace should be provided to all employees, not just supervisors, supporting a culture of zero tolerance for harassment in your company.

Eileen Graham
Eileen Graham
Eileen has practiced HR for over 30 years and has served in both large companies and boutique companies, including Disney, Hasbro, and Umpqua Bank. She currently serves on the board of directors for the EDD/EAC as well as the NCHRA. A Bay Area native, Eileen enjoys visiting Lake Tahoe, reading, and spending time with her family.
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