#metoo prompts fresh look at harassment policies.
In some ways, recent high-profile accusations against powerful media moguls and entertainment figures are irrelevant to most employment lawyers. Few Missouri employers (one hopes) face issues with executives who strut around the shower while holding meetings in their hotel rooms, or lock visitors in their offices via a desk button. As the #metoo social media movement has exposed the depth of sexual harassment that women of all backgrounds routinely face, however, now is the time for employers to update their policies, burnish their training and prepare to deal with issues that, left unchecked, could lead to litigation, low morale and lost employees. Do something about it now, said Bridget Romero of Lathrop Gage. On a recent morning, Romero, along with Lathrop colleagues Brian Woolley and Jill Waldman, gave a group of Kansas City-area employers and human-resources professionals some practical tips for addressing the increased scrutiny that employment issues are beginning to attract. The Feb. 7 session was titled #metoo, Matt Lauer, and You, an alliterative nod to the former NBC Today show host who was fired over alleged inappropriate sexual behavior in November. But the Lathrop team focused on the behavior that crops up from employees in more run-of-the-mill situations inappropriate conversations, spurned advances, sexist or racist language and other instances that can make some employees work lives hell. Woolley said the #metoo environment doesnt necessarily mean that more lawsuits are inevitable. Its not whether it brings more litigation, he said. Its whether it brings more dialogue. A typical example: Employees are told to report problems of sexual harassment to a manager. But its not always clear who a manager is. Do team leaders and other quasi-supervisors qualify? And more importantly, does that person know what to do when he or she receives a report? If front-line supervisors cant answer those questions, they need training, Woolley said. Thats particularly important in the social media area, where a manager might easily learn of distressing behavior through a co-workers Facebook posts rather than from a formal complaint. On the record, off the record, on Facebook, slipped under the door youve got to do something, Woolley said. Fittingly for a conversation sparked in part by bad behavior in the entertainment industry, Romero played a clip from the NBC series The Office in which Toby, the hapless HR manager, is forced to give a five-minute refresher on Dunder Mifflins sexual-harassment policy in the wake of one of Michael Scotts cringe-worthy jokes. As any fan of the show knows, nearly everything Michael says is inappropriate. But so was Tobys refresher, Romero said. Five minutes is far too short a time to talk about such an important topic. And telling the office that the discussion was required by corporate was a recipe for employees to ignore it. Successful policies, she said, will be light on legalese and will stress to employees: This is what we care about. This is who we are. And be careful not to institute poorly defined zero-tolerance policies, Romero warned. While businesses dont want to leave problems unaddressed, they also dont want to box themselves in by requiring the same harsh punishments in all cases. Not everyone gets fired, and not everyone should get fired, she said. Proper investigations of harassment claims are critical, Waldman said. Among the most important aspects, she said, is to begin immediately or, if there is an unavoidable delay, to talk to the complainant and explain what is going on before tackling it as soon as possible. Waldman said the investigator, whether an internal person or an outside agency, should review company policies, the facts of the complaint and the relevant personnel files before talking to both the complainant and the accused employee at least once. Third-party witnesses as many as necessary, but as few as possible also are critical, Waldman said. While it might be impossible to grant complete anonymity to those interviewed, the confidentiality of the process should be impressed on everyone involved, she said. And, Waldman stressed, make sure the complainant doesnt suffer retaliation for having made the complaint. Missouris reported verdicts are rife with instances in which a plaintiff won on a retaliation claim even though the underlying harassment complaint failed. In contrast, it pays to take the time to investigate complaints, to ask the complainant what he or she would like to see happen, and to follow up after the investigation to make sure the problem has been resolved. If you make them feel appreciated, it will go a long way, Waldman said.
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