Matt Lauer. Charlie Rose. Congressmen John Conyers. Kevin Spacey. All are gone from their jobs after sexual harassment and abuse allegations finally bubbled to the surface. This drip-drip of impropriety might become a tsunami that has the potential to damage every industry and many companies – maybe even yours. Handling this type of crisis issue not only involves knowledge of the law, but also effective communications. Combining communications strategy from Belfort Group and legal advice from employment attorney Elizabeth Adler of Beacon Law Group (Boston), here are eight things that can help keep you out of the headlines and out of court:
1: Look at your sexual harassment policy.
Ensure that your policy meets all applicable legal requirements. Distribute it to all new hires, and redistribute it annually to all workers. Have employees read and sign it so there is a record that the company made its policy known to the workforce. You don’t have a sexual harassment policy? GET ONE. While many states establish a minimum number of employees needed before the policy is required to be circulated (in Massachusetts, it’s six), it’s good business to circulate this policy, regardless of your size. It sends a message to employees of accepted behavioral standards at your company, provides them with mechanisms for reporting violations, and provides certain related legal protection for the employer.
2: Train your supervisors and other personnel.
While not required by law, it is extremely important that employers conduct regular workforce training on sexual harassment matters. A trained workforce is less likely to exercise poor judgment which can lead to problems in the workplace. In particular, it is critical for employers to train supervisors, as the actions of supervisory personnel expose the employer (and in certain circumstances, the individual supervisor) to liability.
3: Provide a safe environment where sexual harassment can be reported.
The adage, “if you see something, say something” was never needed more than right now. In addition to alleged victims reporting these incidents, co-workers should be encouraged to report violations, and supervisors are required to do so. If you see an employee being harassed (whether by co-worker or another person involved with the workplace), it should be reported. Transgressors are a threat to everyone and the workplace at large. Creating a safe environment where people know how to come forward (see item 1 above) and feel free to come forward without retaliation is critical. Further, when a person comes forward, he/she needs to be supported and receive certain communications as to what is happening.
4: Investigate All Allegations of Harassment.
By law, employers must promptly investigate all allegations of sexual harassment. This is not optional. The investigation should be designed to elicit the relevant facts. Consider retaining an outside investigator who will be impartial so that you are sure there is no bias in what you learn, and so that your workers are comfortable in fully and productively participating in the process. Get as much relevant information as you can, and make your decision based on the facts and reasonable assessments of credibility. Include your human resources professionals and/or employment counsel as necessary.
5: Have a response plan in place.
The first rule of crisis management is to be prepared. You never know when or if a sexual harassment allegation will strike, but if it does, there need to be procedures that can be executed quickly. If someone comes forward, this is an important issue that needs to be handled and rectified in short order in a proscribed way. You won’t have much time to craft an action plan (see item 4 above regarding the required investigation). If you discover that sexual harassment or abuse has occurred, swift action needs to be taken (see item 7 below). In addition to handling the issue with the people/person involved, you may need to coordinate with witnesses and possibly other stakeholder groups. Having sexual harassment complaints falling on deaf ears is not only illegal, but also demoralizing, as we are hearing from so many victims who were wronged years ago but did not feel safe enough to come forward until now.
6: Have a communications strategy.
Communication is critical, both for the complaining party and – depending on the circumstances – others within the company, the entirety of the company and or the public. While it’s important to circle back with the accuser (whose name should be kept private), it doesn’t mean you will necessarily share with her/him exactly what you’ve determined or the precise actions that will be taken as a result. It is important to assure him/her that you’ve taken the matter seriously, have investigated, and are taking appropriate action. He/she should be thanked for bringing the matter forward, reminded that the company will not tolerate this type of behavior, will not engage in any retaliation, and to encourage them to come forward again if there are any further issues. Depending upon the scope of others who are involved with or aware of the matter, your communications plan should factor in a plan for communicating with these others as well. Others need to know that your company takes action as appropriate, and that there is zero tolerance for inappropriate behavior or retaliation.
7: Consequences need to be commensurate.
It’s important for the employer to carefully consider what actions to take when improper conduct has occurred. Action can take many forms: among other things, an employee can be sent for further training, be separated from those who are uncomfortable working with him/her, assigned to different shifts, warned, suspended or terminated. While it’s a time to be decisive, you also need to be cautious and be consistent in your approach to such matters. For example, are you disciplining an employee in a protected class more harshly than a similar wrongdoer who is not in a protected class? Not only can hasty and punitive action ruin someone’s career and reputation, but if you did not proceed carefully, your actions can lead to a lawsuit.
8: No one is immune.
If your top performers are playing by a different set of rules and aren’t being held accountable for sexual impropriety, that is always a bad a message to send to employees, particularly in this environment. This type of behavior does not build a culture of trust and understanding, not to mention it hinders retention. Further, what happens if a lower level employee happens to tell this Tale of Two Companies to the media? Is that the kind of public relations you want, especially in today’s climate? If Matt Lauer and Kevin Spacey can get fired, so can your company’s All-Stars.
Following the above guidance and having a zero-tolerance approach to bad behavior is the safest way to protect your company’s reputation and culture. Companies that decide to keep their heads in the sand and not deal with sexual harassment will have to deal with employee departures and lawsuits, as well as disappointed stakeholders, media constituencies, and customers. In our opinion, being proactive is the only way to go and the best way to avoid a reputation damaging crisis.