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Revamping Your Anti-Harassment Programs

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In the wake of the #MeToo movement, I have clients wanting to know what they can do both to improve their workplace and protect themselves. They all have good policies and regularly train supervisors and employees on them. So what’s next? Although there is no silver bullet, I suggest you start with the following three things.

Review Your EEO Policy

Although most EEO policies are pretty straightforward, they can always use a little polishing. Does the policy mention all of the protected categories that apply to all of your locations? As a company grows, it can find itself with employees in states or municipalities that have classifications that are not covered in the federal laws. Many states have laws explicitly prohibiting discrimination based on sexual orientation and gender identity. Additionally, a number of federal circuit courts have ruled that Title VII’s prohibition against sex discrimination also covers discrimination based on sexual orientation or gender identity. Then there are municipalities that have covered even more categories. For example, Washington, D.C.’s Human Rights Law prohibits discrimination based on marital status, personal appearance, family responsibilities, matriculation and political affiliation.  Be sure your EEO policy is keeping up.

Review Your Harassment Policy

You need to update your harassment policy like you are updating your EEO policy. In addition to making sure the protected categories are broad enough, think about beefing up your reporting processes.

For years I have preached to clients that they need to have centralized reporting rather than having employees report to any supervisor. It is not that I want to make it hard to report—however, front line supervisors are in a tough spot. They may not have the skills to handle a complaint. Also, front line supervisors are more likely to know a lot about the complainant and the alleged perpetrator and handle it themselves. You don’t want someone discounting a report because “everyone knows the complainant is a liar” or “I know he didn’t mean anything by that.” Those are not good legal defenses.

I am coming to the conclusion that reporting hotlines, including the ability to report anonymously, may be the best options. Properly run hotlines get reports to the right people sooner. Also, if someone has the ability to report anonymously, it makes a later argument that he or she didn’t want to report because they would suffer retaliation a lot less convincing. Investigating an anonymous report presents challenges, but I think it is better to investigate what you can.

And another thing—really think about whether you want to say you have a zero tolerance policy. I find that is easily misinterpreted to mean that anyone found to have violated the harassment policy will be terminated. Is that really what you mean? I find that sexual harassment policy violations can come in a lot of different packages, ranging from unintended, thoughtless comments to boorish behavior to sexual assault. Although you can decide that you will treat all of those events the same, do you want to? In some ways, such a one-size-fits-all approach discourages complaints about behavior that we want to change, but that doesn’t deserve termination.

Revisit Your Training

Train people, and track it. New employees and new supervisors should complete training either before or shortly after they start. Everyone should go through training of some sort periodically. California requires everyone to be trained at least every two years. The State of New York has just enacted a law  that requires employers to provide annual sexual harassment prevention training.

What should your harassment training look like? New York’s new law comes with model training, including minimum standards, for employers to use. Saying that you met those standards, even if you didn’t have to, wouldn’t be a bad fact in defending a claim. So, even if you don’t have employees in New York, it may be worth looking at this material to see if there are parts you want to use.

Get company leadership on board. Having senior leadership (not just HR) involved in training gets employees’ attention and sends the message that this is important. It also gives you the opportunity to talk about workplace culture and respect for each other—more than just saying “don’t harass each other.”

Get feedback from the participants. Give them a chance to ask questions or take a test to be sure they got the message. Send a follow-up message to get feedback and see what stuck.

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