Taking Back Control: Challenging Sexual Harassment in the Workplace
With the recent exposure of Harvey Weinstein's longstanding sexual harassment and predatory behavior in Hollywood and the array of other high profile figures being exposed for sexual harassment and assault, we have felt shaken and angry, but not surprised. This pattern of unchecked bullying and sexual coercion against both men and women is not simply a scourge on the entertainment and media sectors; it is pervasive across all industries. The recent outcry is not only warranted, it is also long overdue. It unleashed a #MeToo movement which exposed more high profile offenders, and likely many others who are not celebrities. In recognition of how this groundswell has taken hold, Time recognized as its Person of the Year for 2017 "The Silence Breakers" - those who have come forward to report sexual misconduct across industries and across the world.
In order to tackle this pressing issue, it's critical to understand what constitutes sexual harassment and what steps can be taken once it has occurred. Sexual harassment and assault can run the gamut from suggestive and offensive comments, invitations for benefits in exchange for sexual favors, to unwanted intimate contact and rape. The harasser can be a colleague, superior, customer or client who attempts to exert power or control over another person through sexually predatory statements or acts. Harassment not only affects the direct targets of this misconduct, it also infects the entire workplace and anyone impacted can assert claims of discrimination. Further, a workplace infected with the disease of tolerating harassment, will inevitably suffer from lowered performance and employee exodus, and potentially legal action.
For many victims, the remedy has been to seek new employment in search of a different, and safer, office culture. Unfortunately, a job shift does not hold individuals and workplaces accountable when misconduct occurs, and can leave those who remain in a toxic and seemingly hopeless situation. It also causes employees to take time off to cope with the stress and to avoid the offender, which ultimately impacts his or her ability to succeed and grow within the organization. This is not only devastating for the recipients of this behavior; but it is also bad for business and hurts the bottom line.
For employees, there is no easy prescription for overcoming a sexually-charged work environment and there is no guarantee that following company protocol will lead to a fair result. However, if you are a target of this behavior, there are some concrete steps you can take to put yourself in the best position to pursue claims or defend yourself against adverse action for resisting or reporting the offenses. For employers, how an organization handles sexual harassment claims is of equal importance in combating this epidemic. If you are an employer, there are various actions you can take to prevent and condemn harassment within your organization. Ending the acceptance and pervasiveness of sexual harassment involves a concerted effort from all parties who are dedicated to creating safer workplace cultures for all.
The Employee's Perspective
Keep a Record
If you are an employee facing or witnessing harassment at work, it is important to maintain contemporaneous documentation of your experience and your response. This information should not be stored or transmitted on a work computer or via work email as you usually do not have a right to privacy on company systems. The information should be kept in a safe place outside the workplace.
Start by creating a work journal where you record on a daily basis, when your memory is clearest. You should memorialize any inappropriate incidents, including what was said or done to you or what you observed being done to others. Try to be as precise as possible by including the who (include full names), what, where, when and how of the situation. Note the date and time of the incident and how you or others responded to it. Keep a list of everyone who witnessed the situation. Ideally, your records should be kept in a bound notebook to avoid claims that pages were removed or that information was omitted.
Keep Emails, Texts and Voice Messages
Don't delete anything that reflects the exchange. If you receive an offensive email, text message or voicemail, save a copy and keep a file with those exemplars outside of the workplace. If you receive a transmission in writing that is offensive, you should respond with something along the lines of, "This type of communication is inappropriate and I expect it to stop immediately." Do not engage further. For example, I am aware of a situation where a predator sent his target thousands of provocative emails, and when she finally came forward, his work computer backup system was able to corroborate the victim's account. Had he deleted the emails, the victim also kept copies enabling her to independently support her version of the harassment. The case was litigated and the victim ultimately received a settlement.
Keep Other Physical Evidence
Don't forget Monica Lewinsky's blue dress. After engaging in intimate contact with the then President of the United States, Monica, a 22-year-old intern at the time, saved the dress she was wearing that was stained with the President's body fluids. By doing so, she was able to overcome the "he said, she said" credibility issue about whether the incident occurred at all. Although the issue of consent is often brought up in cases of sexual assault and harassment, the more physical evidence you have of predatory behavior from before, during, and after the event, the better situated you will be to prepare a complaint. This is particularly important as offensive, intimate incidents often occur when no one else is around to corroborate them.
Consider Reporting the Behavior
In an ideal world, victims of harassment should have a safe and confidential avenue for reporting claims without fear of retaliation. Unfortunately, even when systems are in place, they are not always followed, or supportive of the victim. Therefore, it is helpful to have a copy of your employer's sexual harassment policy on hand so you can better understand what constitutes inappropriate conduct within the policy and what reporting guidelines are in place.
It is not uncommon for targets of harassment to confide in colleagues and ask that the disclosure be kept "off the record." In my experience, there is no reasonable expectation that your complaint will be kept quiet if you report it to someone in your workplace. In fact, in most instances, the person you confide in has an obligation to report the incident through company channels. So if you elect to register a complaint, which I generally recommend as the best course of action, do so in writing through the company's established procedures. Keep a printed copy of the complaint as well as electronic copy for your records. There are risks of retaliation, but if you do not report the incidents when they occur, some may doubt your story if you try to do something about it later.
The Employer's Perspective
Maintain a Clear Written Policy
Every employer, no matter how many employees they have, should develop a clear and current written policy stating that the organization will not tolerate any form of discrimination, harassment, or retaliation for reporting the adverse conduct. The policy should specify how an employee can lodge a complaint and what to do if the person designated as the recipient of such complaints is the person allegedly committing the offending actions. The policy should provide a mechanism for confidential reporting and for witnesses to submit complaints even if they are not the direct target. The policy should be available to all employees at every level including the CEO, and each recipient should be required to sign the document acknowledging that they have read and understood the policy. This practice should be followed whenever the policy is updated and best practice is to review and update it at least annually. Signed employee acknowledgments should also be kept on file by the employer.
Conduct Training Regularly
With the flurry of media coverage and daily exposés about sexual harassment, many well-intentioned people are now unsure about what they can and cannot do in the workplace. Interactions between colleagues may be freighted with uncertainty and confusion. Some behaviors are baldly improper - such as touching someone intimately, or exposing oneself. Other behaviors may be unclear - such as an unsolicited hug or even a comment about physical appearance that was intended as a compliment. Sometimes, it depends on the circumstances and the relationship between the two employees. Ideally, employers should consider providing training by an independent expert in an environment where people can ask questions privately and get frank advice on what is taboo.
Investigate Without Delay and Address the Problem Swiftly
It takes courage for anyone to come forward with a complaint and inevitably the physical and emotional stress of the underlying conduct and the investigation can take a toll. Accordingly, anyone raising these serious issues should have the respect of a thoughtful and timely investigation. The longer the process lingers, the more those involved face uncertainty and ongoing discomfort. Employers should be mindful that delays are painful, and should move the investigation along promptly. Further, it often makes sense to bring in an external investigator who is skilled at handling these sensitive matters. This helps ensure that the investigation is impartial, and that gives all involved parties a fair opportunity to be heard. Always treat anyone involved with respect and with an open mind regardless of their role in the incident. Once the investigation is complete, inform the parties of the results and the steps taken to remedy any impropriety uncovered. Remedies might include training, policy changes, suspension, and even termination of the offending employee depending on the severity of the conduct.
Preserve Evidence and Document the Process
Once an employer is on notice of a claim, there is a potential for administrative proceedings, arbitration or litigation. All parties are required to maintain any records or evidence that bears upon the situation, including electronic transmissions such as emails documenting the complaint and any employer or employee response. The employer should have a document retention policy and follow appropriate protocols so that relevant materials are not deleted or discarded. Failure to preserve evidence could later preclude you from presenting an effective defense, or even expose your company to litigation sanctions.
***
These pointers are intended to best position employers and employees both to stand against behavior that no one should have to tolerate in their workplace. Further, the more victims come forward and push workplaces to condemn and sanction sexual predators, the more progress we will make in changing the culture of silence around sexual harassment. For these reasons, we join Time in saluting The Silence Breakers.