“There is no reason for me to attend this training or review this policy”, he said, “ I have no intention of harassing or discriminating against anyone.” No joke, this is an exact (and relatively recent) quote from a CEO/business owner we know well. Certainly, the majority of us act with the very best of intentions, including the expectation that we and the people we employ will behave with respect, dignity, honesty and the highest-regard for others. However, having witnessed our fair share of impolite and downright inappropriate acts, we know all too well that impropriety and harm can happen despite the best of intentions.
Patricia C. Collins, Esq., an employment attorney with Antheil, Maslow & MacMinn, LLP, shares her thoughts and advice about changing the approach to harassment, discrimination and workplace culture in the midst of the #metoo movement.
Employment lawyers are scrambling to address harassment and discrimination claims in light of the #metoo movement. Gone are the days where they could provide employer clients with formulaic policies and rest their heads knowing their clients are safe. The #metoo movement tells us that we have gotten too comfortable, and it is time to get creative about managing the legal risks of harassment and discrimination in the workplace.
The old routine required three elements: policies forbidding harassment and discrimination, complaint procedures, and training. Every employer had policies that looked nearly the same. Employees would “complain to HR,” an investigation would ensue, and the employer would warn the accused to behave better. Maybe the employee would sue, and the employer would have defenses. The employer would assert during the litigation that all employees and managers were trained and knew such behavior was unacceptable in the workplace.
Now we know that the old routine worked solely as a legal defense. It did not prevent harassment. The old routine yielded serial harassers, too important to fire, settlement agreements with confidentiality clauses that do not hold up, and entire industries in disarray as women come forward to point out that, despite our trusty policies, they are victims of harassment and discrimination.
Modern employers should keep the old policies and procedures in order to preserve those legal defenses, but must apply them with purpose. Provide individualized training for managers or departments, and one-on-one training and coaching for problem employees. Use surveys and self-evaluation techniques to identify workplace culture issues. Rethink the goal of training: not to have a defense ready in the event of a claim, but rather to coach employees and managers and to improve workplace culture. The defense may no longer hold if the training is rote and not tailored to the workplace.
Investigate complaints professionally and objectively. Use the complaint as an opportunity to evaluate the department, the management of the department, the leadership of the organization. Use third party investigators to get to the truth. Do not, above all, belittle, disbelieve, or demean the complainer, or try to hide the complaint. Rethink the goal of the investigation: not to “check the box” in the event of litigation, but rather to identify and eradicate unacceptable behaviors. The case law contemplates that ineffective responses to a harassment complaint will not protect the employer.
The #metoo movement highlights the importance of a meaningful approach to preventing and addressing harassment and discrimination. Employers will benefit legally and professionally from a modern approach to these concepts, that moves away from the scripted, routine policies and procedures that got us here.
Are you in need of a new approach to addressing harassment, discrimination, and inclusion concerns, and are you interested in creating a positive and more productive workplace culture? If so, contact us – we can help!