It’s difficult to not have heard of the #MeToo movement, a platform to draw attention and action to the seriousness of the problem of sexual harassment and assault. The movement has created a zero tolerance reaction to sexual harassment like we’ve never seen before. As a manufacturer, it’s important that you have the information you need to ensure that both your company and your employees are protected when it comes to sexual harassment and assault. We asked our friends at Baker Donelson Law Firm to lead a Lunch & Learn training for manufacturers to help them understand how to handle sexual harassment complaints, what their policies should say, and how to handle allegations. The information was provided by Matthew Davison and Trey Range with Baker Donelson. The training was led by Trey Range.
Trey began the training by talking about some of the scandals that have been publicized recently. Many of the issues shared were obviously over the line, but not all of them were. Not all sexual harassment scenarios are obvious. If you want to make a difference, you need to focus on the “small” or “borderline” issues as well as the large issues.
Keys to Successfully Handing Sexual Harassment Complaints: Take all complaints seriously, even if they are 20 years old. Even though the statute of limitations may have expired for a complaint, the instance can still have negative affects on the company. When a complaint has been brought forth, do a prompt and thorough investigation. Take appropriate remedial action. A “slap on the wrist and move on” mentality is no longer acceptable. It is important for the company to show that they acted upon the issue. Be sure to report back to the complaining party and let them know what has been done.
Anti-Harassment Policy: Have a clear and well-drafted anti-harassment policy that is posted and regularly communicated. You can post the policy on your website, in the same place you post state and federal required posters, in the break room, etc. Employees should know about the policy. The policy should be included in your employee handbook. Be sure to have a signed acknowledgement from each employee. A company has an obligation to do their best to enforce issues. An Anti-Harassment Policy should include:
- A statement prohibiting all forms of unlawful harassment.
- Examples of behavior that constitutes harassment.
- A complaint procedure.
- A statement prohibiting retaliation.
- Consequences of violating the policy.
Reporting Options: Take a look at your policy. It should require employees to report inappropriate behavior. It should include verbiage like “must report” rather than subjective words like “should” or “can”. Provide a minimum of three reporting options. Options could include reporting to HR, reporting to a manager, calling a hotline, etc. Train employees on their obligation to report! Make sure employee do more than just sign a statement of understanding of your policy. Train the employees, in person, especially if your policy has been revised.
Have you seen some of these high profile cases being reported and wondered, “Could this happen to my company?” The unfortunate reality is, it very well could, so be prepared. Have a “Harassment Investigation Checklist”:
- Decide whether outside counsel is needed.
- Interview the accuser (who, what, where, when).
- Interview witnesses.
- Interview accused.
- Make a determination.
- Weigh legal risks, costs, and related factors.
- Take appropriate remedial action, if warranted.
- Follow up to ensure that the remedial action is effective.
- Document the results/do NOT include legal conclusions.
Navigating the Realities of the Instant News Cycle: Traditionally, most companies declined to comment on active investigations to litigation. The current climate, ultra-short media cycle, and social media, requires an updated approach. Have a plan/point person for dealing with unwanted publicity about harassment claims. Issue a statement advising that the company does not tolerate harassing or unlawful conduct, that the company takes all complaints seriously, and that you are in the process of investigating the allegations. Take the conversation offline.
Considerations in Settlement of Sexual Harassment Claims: Is the settlement preferable to litigation? If you settle, include a confidentiality clause and liquidated damages provision. Be aware that confidentiality covenants can be breached, so be sure to have a provision that says what will happen if a breach occurs. Have a plan for dealing with harassment settlements that go public. Consider if the instance is a pattern or a single instance. Patterns can show a problem. Currently, a bill is being debated that would ban confidentiality clauses for sexual harassment settlement agreements.
Trey provided some very valuable information that can be used by companies and organizations large and small. Sexual harassment is a serious issue that requires intentional and careful attention and consideration both in prevention and in the handling of issues. Thank you to Matthew Davison, Trey Range, and Baker Donelson for providing this information for our organization and manufacturers local.
The information above serves as a recap of the presentation provided by Baker Donelson. All information was sourced from the presentation provided.
None of the advice or comments attributed to Baker Donelson should be relied upon as legal advice, nor were any advice or comments intended to be legal advice. Sexual harassment policies and investigations should be tailored specifically to each company and its employees and prepared and handled on a case by case basis by attorneys competent in employment law.