Company Culture, #MeToo and Anti-Harassment Programs

Companies do not operate in a vacuum.  As we know, companies are part of our social fabric and are subject to the same influences as our communities, politics and families.

To say that the MeToo movement has had an impact on corporate cultures, is to offer yet another profound grasp of the obvious.  The MeToo movement’s impact is much more than raising awareness of sexual assault and harassment and increasing reporting of such conduct  The MeToo movement represents a sea-change in our culture, unmasking horrible conduct and treatment of individuals, and creating opportunities for real change in organizations.    A company’s culture has and will continue to adjust to this important change in our society.

There are certain basic steps that companies have to take in its management and oversight of its workforce.  At the outset, most (if not all) companies have experienced a significant increase in the reporting of harassment conduct.  This is a welcome development that can be used as an opportunity to improve employee morale, increase trust in the company’s reporting, investigation and disciplinary system, and enhance employee productivity.  Companies will be tested in this area and they need to respond with robust enforcement, investigation, remediation programs to protect the safety of its employee from illegal harassment.

To confirm this trend, the Equal Employment Opportunity Commission has reported a steady increase in harassment claims over the last three years.  If companies have not seen the same increase, compliance and human resources need to investigate and determine why this same trend has not occurred in the company.

Companies have to do more than just react.  A joint and united effort involving the board, CEO, senior management, Human Resources, Compliance, Legal, and other functions has to address on a proactive basis how to identify inappropriate behavior, recast their policies and procedures, and conduct training and workshops to increase sensitivity, awareness and prevention of harmful behaviors.

Companies are subject to a number of enforcement risks in this area, including Title VII private actions, EEOC enforcement, state and local fair employment agencies, and federal contractor enforcement actions by the Office of Federal Contract Compliance Programs.

There are a number of actions that companies have to take to prevent improper conduct, including:

Revision and updating of company’s anti-harassment policies and procedures.  These policies should be updated to reflect current norms.  Harassment should be defined to include unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age, disability, gender identity, sexual orientation, veteran’s status or genetic information.  Prohibited harassment includes situations where enduring unwelcome conduct becomes a condition of employment, or the conduct creates a work environment that a reasonable person would consider intimidating, hostile, uncomfortable or abusive.  Unwelcome conduct can take many forms, including but not limited to inappropriate touching and offensive comments or jokes referencing slurs, name calling, physical threats, insults and use of pictures or objects.

A company’s anti-harassment policy and procedures should be broader than federal law’s definition and list of protected classes.  While this may be seen as a legal risk, a company has to embrace the full scope of anti-harassment enforcement to send an important message – the company is committed to creating a positive and healthy workplace.

The company has to disseminate its policies throughout the company in as many ways as possible – using regular communications to reinforce the policy and making the policies available on the intranet.  The policies should be posted in all common areas in the company.

The board, CEO and senior leadership have to reiterate the importance of protecting the company’s workplace, set a positive example in treating others on the job, and interacting with employees in a positive and respectful manner.

Anti-harassment training should be robust and used as an opportunity to reinforce the company’s zero tolerance policy towards harassment.  The board, CEO and senior management should attend the training first followed by other managers and employees.

A clear message should be sent on holding managers accountable throughout the company.  Employee evaluations should include responsibilities for protecting and promoting and safe and harassment-free environment.

If violations occur, the disciplinary actions should be swift, fair and consistent across the organization.  The commitment to aggressive enforcement should be clear and communicated prior to implementing such a policy.  Zero tolerance has to mean zero tolerance even when top performers in the organization violate the company’s policy.

Last but certainly not least, a company has to develop effective monitoring and data collection programs to identify reported violations, employee concerns, investigations, and disciplinary actions.  The measurement of such conduct is critical to refining proactive strategies, identifying problem actors and areas before they become even more harmful, and building a culture of trust between employees and management.

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