Preventing and Managing Sexual
Harassment Claims in the #MeToo Era

by Sterling Miller

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In-house lawyers have always been concerned about sexual harassment policy and claims, but the rise of the #MeToo movement has provided a loud wake-up call regarding the highly negative impact of such claims for both employees and the company. The headlines over the last eight months are littered with deplorable accounts of men using their power to take advantage of female employees. The movement is a sea-change nationwide, where sexually abused women are no longer suffering in silence. Instead, beginning with the downfall of movie producer Harvey Weinstein in late 2017, they are coming forward in waves with their stories, bringing with them a glaring hot spotlight on the darkest corners of corporate offices all over the world.

While the news headlines tend to focus on the misdeeds of the rich and famous, the concern is local for in-house lawyers. The movement should provide added urgency for in-house lawyers to make sure their company is doing the things necessary to ensure a safe workplace for women and men. Dealing with sexual harassment claims in the #MeToo era comes down to getting the basics right. For many companies, it is easy to trace the devastating impact of particularly damaging sexual harassment claims to two problems: failure to properly investigate and failure to take appropriate action. Below are the key things to do now to prevent sexual harassment from occurring and, if it does, properly investigate and resolve such claims.

1. What is sexual harassment?

Sexual harassment takes two forms: a) creating a hostile work environment; and b) quid pro quo (e.g., demanding sex in exchange for a promotion or raise). I have found the definition provided by the EEOC is helpful:

“It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” [Click here to see the full definitions]

The more difficult task for in-house lawyers is applying definition to actual behavior in the workplace. Here is just a partial list of activities that can – under the right circumstances - constitute sexual harassment (and click here for the full list):

• Unwanted deliberate touching, leaning over, cornering, or pinching.
• Unwanted letters, emails, telephone calls, or materials of a sexual nature.
• Looking a person up and down.
• Sexually suggestive signals.
• Neck massage.
• Giving personal gifts.
• Personal questions about social or sexual life.

2. Have the right policies in place.

The starting point to preventing sexual harassment claims is ensuring the company has the right policies in place. As you look at the partial list of behaviors above, you can see the challenge to drafting a sexual harassment policy covering every situation. Click here and here for some sexual harassment policy templates. Regardless, any policies must meet three core criteria:

• They should be easy to find and read. The employee handbook is a good place to start. Likewise, a separate place on the company’s internal website is advised. Next, lose the legal jargon and keep it concise. A short policy with a clear and simple description of what is unacceptable is much more likely to be read and understood. The policies should include clear instructions on how to file a claim and the company’s investigation process. Also, your sexual harassment policy should be translated for locations outside the home country or if there are employees who may struggle with English.
• Zero tolerance. Your policy should start with a statement of zero tolerance for sexual harassment. This isn’t the place for shades of gray. The issue is black and white so write it that way. Be sure to note there will be no retaliation against those bringing claims forward.
• Cover gateway issues. Sexual harassment is not the only problem you need to cover. You should also get at the “gateway” problems and cover bullying, harassment based on race or other factors, and lack of civility generally. Toleration for these types of behaviors almost always opens the gate for employees to feel even worse behavior is somehow okay.

Many companies require their employees sign and acknowledge reading and understanding the sexual harassment policy. This is a good idea. Also, your policies should be updated yearly. Go ahead and calendar a day once a year to sit down with HR to do this.

3. Hire the right people.

Sounds a little obvious, right? But one way to prevent sexual harassment is to hire the right people, both employees and management. Insist on background checks on all employees. Make sure you use a reputable company digging deeply enough to find problems related to incidents involving harassment or violent crimes. Similarly, check references and remember public social media posts are another way to determine the character of potential employees. Hire people that fit into your culture. When promoting employees to a manager role, use this opportunity to train them on their responsibilities regarding harassment and ensure they are willing to take the responsibility seriously. Think long and hard about promoting someone with a history of complaints against them (better yet, ask yourself why they are still employed at the company).

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