#Metoo? #Metoo. #Metoo! Are You Prepared for It?
By Kim Jones
The U.S. has explicitly prohibited sexual harassment for more than 40 years. In recent years, trainers on how to comply with Title VII’s prohibition against sexual harassment have struggled to make training “meaningful,” and as such, have focused on more subtle behaviors or microaggressions that can create a hostile environment based on sex in the workplace.
To discuss overt demands for sex in exchange for job advancement or job security, seemed passé—too obvious. And yet, in the past four months, we have been peppered daily with new revelations of at best, boorish, and at worst, predatory, behavior.
Most employers have policies prohibiting harassment based on sex as well as other protected characteristics. These policies advise victims to promptly report prohibited behavior to a manager or Human Resources. In turn, the company promises to investigate the complaint and remedy any behavior that violates its policies, all the while protecting the complainant from retaliation.
Yet the rash of reports from all industries reveals these policies have not worked. The behavior continued. Why? What should organizations do differently?
First, every company should re-examine is complaint procedure. Managers and/or human resources are viable avenues but they are not enough. Human resources is, at times, erroneously viewed as a shill for those in power. Even if perceived as a viable neutral third party, more often than not, the most senior
member of HR reports to other executives in an organization or is perceived as impotent against high producers. Therefore, what is a victim to do when the perpetrator is a member of that inner circle?
Every organization should consider implementing a complaint procedure that provides direct access to the board of directors, if there is one, and/or a truly neutral third party such as a hotline or ethics line.
Second, organizations must foster a culture that harassing conduct will not be tolerated under any circumstances. Educating a company’s work force on its anti-harassment policy is an important first step. However, conducting annual training that occurs every year or every other year sends a strong message
that the organization believes the issue is important and worth the time and resources to revisit.
For those companies that have not conducted anti-harassment training in recent years, they should do so soon.
While some may argue that to conduct such training in the current environment is “reactive,” failing to react in the wake of almost daily reports of egregious conduct is bordering on reckless.
No organization can credibly claim this is not an issue in their industry. It is an issue in every industry and we must continue talking about it.
Third, the most senior members of management must convey a zero tolerance for this conduct. This is more than simply avoiding behaviors that may be perceived as harassing. It is participating in the annual training on the company’s anti-harassment policies. It is taking swift and decisive action when complaints
are made, even if the complaint is against a senior member of management or a high producer. It is ensuring that human resources is treated as a meaningful partner in employment-related issues and not as an impediment to what management wants to do.
Finally, as with all issues that garner heightened attention, we must be wary of the backlash. In this respect, it is important that all complaints receive meaningful and thorough investigations—not only for the sake of the alleged victim of harassment, but for the benefit of the accused, as well. It will take only
a few examples of individuals’ being punished for accusations later proven to be unfounded or exaggerated for the pendulum to swing in the opposite direction.
Kim Jones is managing partner at the Kansas City law firm of Seyferth, Blumenthal & Harris.
E | email@example.com