navigating the #metoo minefield - beacon programs · 2018-11-14 · leadership and accountability...

ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC

Navigating the #MeToo

Minefield

#MeToo – Started as a Tweet

Direct Cost of Harassment for Employers

• Time, energy, and other resources diverted from operations to legal matters • Discovery

• Depositions

• Mediations and settlements

• Litigation

• Court awards

• Damages

• Injunctions

• PR

Indirect Costs

• Negative publicity

Why Don’t Employees Report?

• Fear they will not be believed

• Doubt that anything effective will result

• Self-blame for causing the harassment

• Fear of humiliation and being ostracized by co-workers

• Fear of damage to their career and reputation

• Fear of getting their harasser in trouble

• Fear of being labeled as a “complainer” or “whiner”

RISK FACTORS

Homogenous Workforce

RISK FACTORS

Some employees do not conform with workplace norms

RISK FACTORS

Cultural and

Language DIFFERENCES

(differences)

RISK FACTORS

Coarsened/heated social discourse outside the workplace

RISK FACTORS

Young Workforce

RISK FACTORS

“High Value” Persons

RISK FACTORS

Significant power disparities

RISK FACTORS

Reliance on customer service or

client satisfaction

RISK FACTORS

Workplace where work is

monotonous or tasks are low

intensity

RISK FACTORS

Isolated Workplaces

RISK FACTORS

Workplaces that encourage or tolerate alcohol consumption

Responding to Complaints

• Accountability • Hold responsible persons who harass, especially the star

value ones

• Make mid-level managers and front-line supervisors responsible for monitoring and stopping harassment

• All employees should have a duty to report

• Impose discipline that is prompt, consistent and proportionate to the severity of the harassment.

Recommendations for Workplace Leadership and Accountability

• Communicate and model a commitment to a civil workplace in which harassment is not tolerated

• Assess the workplace for harassment risk factors and seek to minimize them

• Ensure that all employees, from the CEO down, is present at all harassment training

Recommendations for Workplace Leadership and Accountability

• Devote sufficient resources to harassment prevention

• Hold mid-level managers and front-line supervisors accountable for preventing/responding to harassment in performance reviews

• Conduct exit interviews

Recommendations for Policies and Practices

• Have a comprehensive anti-harassment policy, including social media, with procedures that promote confidence that a response will be prompt and effective

• Effectively communicate policy and procedures to employees, especially how to report harassment

• Allow multiple ways and points of contact for reporting harassment

• Actively monitor for possible retaliation against employees who participate in a complaint/investigation

• Periodically test reporting procedures

• Make discipline consistent, prompt, and proportional

Recommendation for Anti-Harassment Compliance Training

• Small group sessions

• Provide regular (repeated) and universal training (employees and persons regularly in the workplace)

• Provide training to mid-level manager and front-line supervisors to recognize harassment, or when someone is trying to report harassment, and how to intervene if they become aware of harassment

Recommendations for Workplace Civility and Bystander Intervention

• Provide workplace civility and bystander intervention training as part of anti-harassment program

Investigating and Documenting Harassment Complaints

2018 - Twenty Years of Faragher and Ellerth

• Reasonable care to prevent and promptly correct any sexually harassing behavior; AND

• Employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Investigating and Documenting

• What to investigate

• How to select an investigator

• How to conduct an investigation

• What to do during and after investigation

• Tips for documenting

INVESTIGATION

When should you investigate?

INVESTIGATION

Doing it right has an impact beyond the subject complaint.

WHO SHOULD INVESTIGATE?

• Internal Company Investigator

• Outside Investigator

• Lawyer

• Considerations • POLICIES

• CULTURE

• PRACTICES

• OBJECTIVITY

INVESTIGATION

• Investigation Goal: Collect the facts and develop a solution to address and prevent identified issues

INVESTIGATION

• Getting Started: • Do not ask the employee if he wants you to investigate

• Do not promise or demand complete confidentiality

• Do not use conclusory statements or overstate the allegations

• Establish the scope

CONSIDER THE CONDITIONS

• Evaluate whether a location transfer or suspension (with or without pay) is appropriate during the pendency of the investigation • Threat of violence

• Fear of retaliation

• Supervisor is the accused

CONDUCTING THE INVESTIGATION

• Conduct interviews on-site (generally) or in a comfortable, but discrete setting

• Interview the complainant, witnesses, and alleged bad actor

• Make the interviewees feel comfortable

• Schedule interview when neither the interviewee nor interviewer will be rushed

• Help interviewees understand the seriousness of the process and the need for accurate fact-finding

• Ask for cooperation and truthfulness

• Commit to and confirm no retaliation

• Complainant

• Accused

• Witnesses

• Documents

The he said, she said scenario

• Impress upon witnesses the need for truthfulness and the consequences for failing to do so

• Remind employees about the protection from retaliation

• Get a full understanding of context

• Evaluate credibility

SPECIAL CONSIDERATIONS

• Refusal to participate

• Requests to record

• Request for a representative

INVESTIGATION DOCUMENTATION

• Create documentation that is factual and not editorial

• Prepare a report compiling and analyzing the factual details to support a conclusion and recommendation for resolution

• Consider third-party review

Tips for Documenting

• From a legal standpoint, sticking to facts and not editorial comments will help establish a record of a reasonable, legitimate response

• From a personnel standpoint, clear documentation gives the employee an opportunity to improve or correct the behavior or at least understand the reason for personnel action, even if the employee disagrees

INVESTIGATION OUTCOMES

• Have more than one person involved in reviewing the investigation report and deciding on the course of action

• Involve HR and legal to ensure consistency

SPECIAL CONSIDERATIONS

• Consensual Relationships • no-dating policies difficult to enforce

and may be their own source of morale problems

• meet with parties and document the relationship

• may want to change chain of command

Anticipate litigation?

• Follow Legal Hold Protocol • Identify Stakeholders

• Map Data

• Assign Responsibilities

• Periodic Follow-Ups

• Evolving Scope of the Hold

• Departing Representatives/Staff

• Including New Representatives/Staff

• Document Everything

• Release the Hold

Best Way to Avoid the #MeToo Minefield: Take Action

• Inappropriate social media contact

• Observed odd behavior

• Water cooler whispers

Kelly Fitzgerald Pate, Esq. 105 Tallapoosa Street, Suite 200

Montgomery, AL 36104 Telephone: (334) 269-3130 Facsimile: (866) 501-9985

kpate@balch.com

Martha L. Thompson, Esq. 1901 Sixth Avenue North, Suite 1500

Birmingham, AL 35203-4642 Telephone: (205) 226-3431 Facsimile: (205) 488-5626 mlthompson@balch.com

navigating the #metoo minefield - beacon programs · 2018-11-14 · leadership and accountability...

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