Advice for Businesses in Light of the #MeToo Movement

The past six months or so have seen a dramatic uptick in the visibility of sexual harassment cases in the workplace. This comes partially as a response to the solidarity women have felt thanks to a hashtag encouraging people to share their stories of workplace sexual harassment: #MeToo.

As a business, it is important to understand how this may affect day-to-day operations and even the bottom line. Studies have shown that sexual harassment in the workplace costs American companies and government organizations money in turnover costs, sick-leave pay, and reduced productivity of employees, in addition to legal liability.

This article aims to shine some light on what can be done in a particularly sensitive societal climate to realistically prevent workplace sexual harassment and how to deal with it should sexual harassment be brought to management’s attention.

Sexual harassment can be perpetrated in two different ways. First, when a superior makes a quid pro quo or “this for that” offer for an employee boon, or to prevent a negative action, in exchange for a sexual act of some kind; and second, when the employee is subjected to a hostile work environment.

A hostile work environment claim is established when an employee shows that the harassment was so pervasive that it materially altered the terms of employment, and the business knew or should have known of the harassment and did not act appropriately to stop it.

When a supervisor is empowered to use his or her authority given by the company to coerce sex, the employer will be held strictly liable. This liability is predicated on the idea that an employer is responsible for the acts of management and should be motivated to prevent sexual harassment.

The employer may, however, be able to avoid liability in hostile-work-environment cases by proving that it took reasonable care to prevent and correct any sexual harassment, and the employee failed to take advantage of preventive or corrective opportunities put in place by the employer.

Because the EEOC, the government agency responsible for handling workplace discrimination cases, and the Supreme Court have articulated their stance on what an employer must do, much of the training surrounding the issues serves to inform employees of what constitutes sexual harassment and how to avoid legal liability.

These certainly are important concepts to cover in sexual harassment training, but teaching employees what sexual harassment is and stopping them from doing it are two very different things. Studies have shown that programs focusing on recognition of sexual harassment do not actually work to change or prevent harassing behaviors.

So what does work? Most experts agree that a shift in company culture is necessary to truly reduce or prevent sexual harassment. Although sexual harassment can be female on male, female on female, or male on male, the most frequent type of harassment seen is male on female.

There are steps companies can take to go beyond liability prevention to reach the root cause of the sexual harassment. Studies have found that when employees see leaders in the company embracing sexual harassment awareness and training, it helps to underscore that the company is taking it seriously, instead of simply forcing compliance to check a legal box. This can be as simple as bosses sitting in as learners in the trainings.

It has also been found that when men are either conducting or integrally involved with training, employees are more likely to take the issue seriously. This seems to be because if the persons statistically most likely to offend are saying “Don’t do this,” it lends an air of seriousness to the training.

Another way to improve the company culture is by hiring and promoting more women into high-level leadership positions. When women are clearly respected as equals and leaders in a company, men are less likely to see them as vulnerable, and therefore, less likely to perpetrate sexually harassing behaviors.

Another crucial piece of the puzzle is reporting. A company needs to have a clear method for employees to report harassment or suspected sexual harassment and a strongly articulated anti-retaliation policy so that they are protected when they do report. Studies have shown that most individuals who report sexual harassment end up facing some type of retaliation — some studies put this figure as high as 75 percent.

The EEOC reports that almost half of all harassment cases filed are due to retaliation and not necessarily the underlying harassment, so it is very important to know how to handle a report of sexual harassment without retaliating.

It has also been found that having multiple avenues to report an incident makes it more likely that people will disclose the harassment. If an employee does not feel comfortable reporting to a certain individual, he or she must have other avenues to do so.

Perhaps the most important success factor, however, is bystander involvement. When bystanders feel like they can effectuate change by speaking up against sexual harassment, the culture perceptibly shifts. This can be in the form of supporting someone a bystander sees as a victim or confronting someone a bystander sees as being in the wrong.

When this type of awareness and sensitivity is encouraged, the cultural norms shift, disallowing and discouraging sexual harassment and truly preventing it from taking place.

Contrarily, if bystanders feel that sexual harassment is accepted by the work culture, or that they will face ridicule or scrutiny for speaking out, they are more likely to stand by silently endorsing the continued harassment. The most successful sexual harassment prevention programs empower the bystander.

What happens if a company takes the appropriate steps to educate its employees and shape the company culture and it still has an incident of sexual harassment reported?

Having a solid plan of action ready to be employed is imperative not only to make sure the accuser’s allegation is handled appropriately, but also to avoid vicarious liability on the part of the business. This plan should include how the business will carry out the investigation, how the business will aid and respect the victim, how it will discipline a person determined to be a sexual harasser, how to handle claims determined to be false, and how the business will document the investigation to protect itself and maintain confidentiality.

This plan should be clearly communicated to employees, so that in knowing what to expect, the reticence to report can be dispelled.

#MeToo was used almost 12 million times in 85 different countries in 2017, which reveals that what employers are currently doing to prevent sexual harassment is not working. Instead, businesses should augment current programs by taking steps to address the underlying cultural issues with a more holistic approach to prevent sexual harassment. #MeToo has jumpstarted the discussion, making now an excellent time to conduct a meaningful dialogue within your business. BW

Thea A. Paolini is an attorney in the Business & Employment practice group at the Harrisburg-based law firm Nauman Smith. With an MBA, she has a special interest in legal issues impacting business operations.