By: David M. Briggs, Employment Law & Litigation Attorney
It is hard to believe that it has been a year since we first heard of #MeToo. In October 2017, a story came out detailing the egregious conduct of Harvey Weinstein. That story became the springboard to a broader movement demanding accountability from institutions throughout the country.
We cannot determine whether there has been an uptick in claims over the course of the past year because statistics from the Equal Employment Opportunity Commission or the Bureau of Labor and Industries are not available yet for this period following the beginning of the #MeToo movement. But, anecdotally, many law firms have seen an increase in the number of administrative claims and lawsuits filed.
Employers in every industry have stepped back to evaluate their policies and procedures. It is a good time to reflect on how employers can make their companies better and more compliant. We all also need to consider how to respond in case of allegations of harassment or discrimination.
Policies and Procedures
Every company with employees should have a policy about harassment and discrimination in the workplace. These policies should do more than just prohibit inappropriate conduct. You should provide specific examples of inappropriate conduct and a mechanism to allow employees to submit complaints. Most importantly, companies should designate where those complaints go.
Keep in mind that employers will typically be held liable for harassment or discrimination that they know or should have known about. That knowledge extends to all of a company’s supervisors. So, if a supervisor knows about or participates in harassment of an employee, the company will face great risk of liability if something happens to the employee.
Train Your Employees and Managers
Companies need to set the tone and lay out expectations for all of their employees. In past harassment trainings, the education focused on what harassment and discrimination is and conduct that we look to model.
Now, trainings for all staff should also include the creation of an open environment that encourages employees to step in on behalf of other employees. A focus should be on the culture that you want to establish.
In conjunction with that training, supervisors and managers need to be trained. These employees have unique abilities to create liability for your company. Under the law, the company is liable for harassment or discrimination that it knows or should have known about. The law also says that the company is considered to be aware of any harassment or discrimination about which any supervisor or manager knew or should have known. These employees must know when to report concerns to human resources or owners. Sitting on issues or “dealing” with them— without actually addressing them—can lead to substantially more liability. Supervisors and managers need to be trained on how to intake complaints and discover information as well as know where to report that information.
What to Do When a Complaint Comes In
Companies must be prepared in the event a complaint comes in. If the company receives a complaint that an employee is being harassed or discriminated against, you must take prompt action. That may mean suspending the alleged harasser or moving his/her individual shifts (but be very careful about changing anything for the alleged victim or any witness!).
Next, you will need to select an investigator. Here are a few questions that you should ask yourself when selecting an investigator:
- Do we have someone with sufficient experience to conduct the investigation?
- Do I need to get an outside investigator? If you do select an outside investigator, are you running that investigator through your attorney to preserve potential attorney/client privilege?
- Will it be a team of investigators or just one?
- How will the person record conversations (notes vs. audio/video recording)? Note: Know the laws related to recording conversations before you start!
- Will the person or group be neutral—and perceived by all parties as neutral?
- What will the investigator be in charge of? (i.e., just gathering facts; recommending disciplinary/remedial action if warranted; or asked to impose discipline/remedial action)
Next, the methodology of the investigation is important. Typically, the investigator will first speak to the one complaining about the conduct. Next, the investigator would talk to any alleged victims, followed by the accused. The investigator will need to check in with witnesses, especially those recommended by the alleged victims and accused. At each step of the way, investigators need to remind parties of the fact that the company will not tolerate retaliation against people making complaints or participating in the investigation.
Determining when an investigation is complete can be a challenging decision. Will another witness just be cumulative? Or could it add new information for the investigators to consider?
Once complete, an investigation report should be drafted that describes the investigative process, a brief summary of statements from witnesses and conclusions of the investigation. From there, the company should take disciplinary action as appropriate. It may also decide to take more remedial action for certain groups/departments, such as harassment training, team building, or classes on effective communication.
In the end, the #MeToo movement has been a wakeup call for many employers. Having good policies and procedures in place now can ensure a healthy and safe working environment while saving the company from long and expensive litigation later. Should you have questions or want to talk about your policies or procedures or schedule a training with your staff, contact David Briggs at (503) 399-1070 or [email protected]