Studies repeatedly indicate that most workplace sexual harassment goes unreported. Employees may not report sexual harassment for many reasons, but among the most noted are a lack of confidence that anything will be done in response to a complaint, and a concern that the employee’s professional reputation will suffer as a result of making a complaint. However, #MeToo is evidence that many employees want to talk about being sexually harassed. That makes this a good time to demonstrate management’s commitment to a workplace free of sexual harassment. Management can do this in several ways.
First, treat complaints made through #MeToo outlets just as seriously as reports of harassment made through established policy. If a #MeToo post includes names, or they can be inferred from the circumstances described in a post, then management is on notice and should take action. It’s a fair bet that employees will be aware of the post, and will be watching to see what happens, so this is an opportunity to build confidence that management means what its anti-harassment policy says. (Even though the investigation is confidential, the reality is that employees inevitably know when an investigation is being conducted.)
Start by capturing relevant posts with screen shots. If necessary, these also might be obtained through an archive service. If, in addition to tweets by a harassed employee, there are harassing social media posts, these also should be captured by screen shoots, at least initially. Although not a concern for an in-house investigation, the evidentiary requirements for admitting social media posts in court is an evolving area of the law. Be aware of the requirements in your jurisdiction and act accordingly to ensure that this evidence can be used in court if necessary. Again, an archival service might be helpful.
If the employee who experienced the harassment does not want to participate in an investigation, and will not provide names, that might be the end of the matter. For example, if word-on-word evidence is all that’s going to be available, and the harassed employee does not want to cooperate, documenting the employee’s refusal to participate may be all that can be done. However, if the identity of other persons can be determined, interview them to see what can be learned, and to protect the company from claims that it ignored available evidence of harassment. Take time to thoroughly document the interviews and any follow-up action, discipline or training.
Employers that, happily, do not find themselves mentioned on social media in connection with a sexual harassment complaint nevertheless should take advantage of #MeToo by having their leadership reaffirm its commitment to eliminating sexual harassment and the conditions that promote it. Don’t be afraid to encourage reporting. By communicating that complaints of sexual harassment will be responded to promptly, that transgressors will be held accountable, and that persons who participate in a complaint or investigation will be protected from retaliation, leadership can start fostering a culture in which employees conclude they can safely discuss harassment with HR, rather than merely post complaints on social media. This cultural change encourages early reporting and enables employers to address problem situations before the workplace becomes another #MeToo story.
Dorman Walker, partner in Balch & Bingham’s Labor & Employment Practice, has deep experience in employment law litigation and represents both private employers and governmental employers. He can be reached at dwalker@balch.com.
Kelly Pate, partner in Balch & Bingham’s Labor & Employment Practice, handles litigation and pre-dispute matters related to employment issues, regularly advises employers on compliance issues, develops policies, and provides training. She can be reached at kpate@balch.com.
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