Navigating harassment allegations in the #metoo era

By Kelly Caplan
BridgeTower Media Newswires
 
DETROIT—Sexual harassment claims have gotten broad media coverage recently, and the guilty verdicts in the Harvey Weinstein and Bill Cosby trials will have repercussions far beyond Hollywood, according to employment attorneys.

Because of this heightened public awareness, the impact will be felt by employers grappling with sexual harassment cases, and the employees who have filed such claims.

Deborah Brouwer, a partner with Detroit-based management-side labor and employment law firm Nemeth Law PC, said employers must take claims seriously, and implement an anti-harassment policy to protect themselves and their employees.

“A company must ‘walk the walk’ — it absolutely must, from the highest levels down, act in a professional way,” she stated. “You cannot issue a policy and then have leadership act inconsistently with the policy.”

Additionally, she noted these policies should provide protection from outside vendors and agents doing business with the company, adding it has to be known to everyone that the company does not tolerate harassment.

“Employers should have in place a written anti-harassment policy that clearly states that harassment — of any type — will not be tolerated,” Brouwer said. “The policy should contain specific information on avenues that an employee can take if they experience or see harassment, and it should say that the company will not retaliate against an employee for good faith reports of harassment.”

It appears this increased scrutiny regarding workplace sexual harassment has led victims to feel like they will be heard and believed.

Cary McGehee, a founding partner and employment and civil rights attorney with Pitt, McGehee, Palmer, & Rivers in Royal Oak, said the #metoo movement and the Weinstein and Cosby guilty verdicts have had a positive effect.

“From an employment law and civil rights perspective, we are getting more women who are calling to get advice and feeling empowered to say something,” she said. “They had been in the shadows in the past; they put up with it and didn’t feel like there was any possibility of changing the situation.”

McGehee notes she is cautiously optimistic.

“Companies have finally acknowledged the pervasiveness of the problem of sexual harassment and retaliation for reporting sexual harassment in the workplace that had occurred over many, many decades, and the reality that corporate America tolerated it or swept it under the rug in order to protect its executives and upper managers among others in an effort to save their financial bottom lines,” she said. “Now I think companies are realizing that their financial bottom line may be impacted by not doing anything.”

Brouwer added that even though Weinstein wasn’t an employer in the situations where he was found guilty, he did wield tremendous power over his victims’ careers.

“The Weinstein case affirms the need for that protection, and for employers to take all claims of workplace harassment seriously, regardless of the role or influence of the alleged perpetrator,” she said.

Regardless of whom the offender may be, making and proving allegations of sexual harassment in the workplace is still a daunting experience for anyone who decides to take a stand, McGehee said.

“Those victims who are still in the workplace must face the reality of uneven power dynamic,” she explained. “These employees recognize that if their complaint is against their supervisor who has a lot of power over their salary, raises, bonuses, it could be a career killer if they want to continue with the company.”

After an allegation

An employee has reached out to Human Resources to say that she or he is being sexually harassed at work. Now what?

Brouwer said companies should limit information to those who truly need to know, typically Human Resources and senior leadership, and that swift action is paramount.

“When a complaint is received, the company should promptly and thoroughly investigate the complaint and, if appropriate, take remedial action,” she said. “Such action could involve discipline or discharge or reassignment — of the harasser, not the victim — and the outcome of the investigation should be communicated, not necessarily in detail, to the complainant.”

While the investigation must be thorough, it must also be impartial.

McGehee agreed.

“Companies are enforcing zero tolerance policies much more than they did in the past,” she said. “I find when a complaint comes to their attention, a lot of companies are hiring outside counsel to do an investigation.”

And while investigations are a crucial part of the process, there are still hurdles that employees must overcome.

Brouwer noted one of the biggest problems is the desire for everything to remain confidential, which can be difficult to do while conducting a thorough investigation.

“Witnesses often are fearful that their jobs will be in jeopardy or that they will suffer retaliation if they participate in an investigation,” she said. “They must be reassured that the company will not tolerate such retaliation. The company should be proactive here, and keep an eye on matters.”

In addition, McGehee said victims might also have to contend with difficulty in bringing in witnesses who might not want to be involved.

“It is often the case that sexual harassment occurs with no witnesses, so it’s ‘he said, she said,’ which is very scary when there’s a power dynamic difference,” McGehee explained. “What I’m finding is that victims of harassment feel more comfortable complaining, but probably more so when they feel that there are other witnesses who are going to corroborate what happened to them.”

Dos and don’ts

Brouwer said a company’s anti-harassment policy should be distributed to employees upon hire, and periodically as well. She said employers should provide annual training, if possible, on the policy.

“While periodic online training may be acceptable as a refresher, it is not a real substitute for in-person, interactive training,” she explained. “Ideally, the training would use case studies that require listeners to think critically about their own conduct and that of others.”

McGehee noted that the advice she provides varies depending on if an employee is still working at the company, or if the environment had become so hostile that they felt compelled to resign.

“If an employee is being subjected to sexual harassment in the workplace and they’re still employed, it’s very important for them to document it and to tell someone,” she said. “Keeping contemporaneous notes regarding what happened is important and helps in terms of substantiating the claim. And those notes should be kept at home, not at the office.”

They should next seek legal counsel to determine what the next best move may be, and how they should approach the situation.

“It’s a complicated dynamic and it’s important to get good advice on what the consequences may be,” she cautioned. “The main thing is if you’re going to take action, make sure it is protected activity. If the consequences are some retaliatory action, you have proof that they knew that you complained.”