navigating the #metoo minefield - beacon programs · 2018-11-14 · leadership and accountability...
TRANSCRIPT
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
Navigating the #MeToo
Minefield
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
#MeToo – Started as a Tweet
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
Indirect Costs
• Negative publicity
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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”
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
Homogenous Workforce
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
Some employees do not conform with workplace norms
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
Cultural and
Language DIFFERENCES
(differences)
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
Coarsened/heated social discourse outside the workplace
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
Young Workforce
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
“High Value” Persons
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
Significant power disparities
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
Reliance on customer service or
client satisfaction
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
Workplace where work is
monotonous or tasks are low
intensity
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
Isolated Workplaces
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
RISK FACTORS
Workplaces that encourage or tolerate alcohol consumption
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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.
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
Recommendations for Workplace Civility and Bystander Intervention
• Provide workplace civility and bystander intervention training as part of anti-harassment program
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
Investigating and Documenting Harassment Complaints
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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.
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
INVESTIGATION
When should you investigate?
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
INVESTIGATION
Doing it right has an impact beyond the subject complaint.
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
WHO SHOULD INVESTIGATE?
• Internal Company Investigator
• Outside Investigator
• Lawyer
• Considerations • POLICIES
• CULTURE
• PRACTICES
• OBJECTIVITY
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
INVESTIGATION
• Investigation Goal: Collect the facts and develop a solution to address and prevent identified issues
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
CONDUCTING THE INVESTIGATION
• Conduct interviews on-site (generally) or in a comfortable, but discrete setting
• Interview the complainant, witnesses, and alleged bad actor
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
CONDUCTING THE INVESTIGATION
• 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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
CONDUCTING THE INVESTIGATION
• Complainant
• Accused
• Witnesses
• Documents
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
SPECIAL CONSIDERATIONS
• Refusal to participate
• Requests to record
• Request for a representative
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
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
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
Best Way to Avoid the #MeToo Minefield: Take Action
• Inappropriate social media contact
• Observed odd behavior
• Water cooler whispers
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
ALABAMA | FLORIDA | GEORGIA | MISSISSIPPI | WASHINGTON DC
Kelly Fitzgerald Pate, Esq. 105 Tallapoosa Street, Suite 200
Montgomery, AL 36104 Telephone: (334) 269-3130 Facsimile: (866) 501-9985
Martha L. Thompson, Esq. 1901 Sixth Avenue North, Suite 1500
Birmingham, AL 35203-4642 Telephone: (205) 226-3431 Facsimile: (205) 488-5626 [email protected]