#METOO took social media by storm in October 2017 as a means of illustrating the prevalence of sexual assault, harassment, and misconduct, particularly in the workplace. As the conversation around the #METOO movement swirls, employers have begun to assess how the movement affects their policies. Employers should stick to a simple three-part strategy: (1) promulgate a clear policy; (2) thoroughly investigate complaints; and (3) always respond accordingly and swiftly.
(1) Promulgate a Clear Policy. Courts generally find that employers may be found liable for the sexual misconduct of their employees, and the jury awards are staggering. Employers must have a zero tolerance policy which is distributed to the employees in a clear manner through employee handbooks or other similar materials.
(2) Thoroughly Investigate Claims. Employees, regardless of gender or gender-identity, should feel that they have a safe venue for reporting concerns without retaliation. All complaints and allegations must result in a fair and thorough investigation. If an employee brings an allegation of sexual harassment, the allegation should be kept as confidential as possible. A thorough investigation includes retrieving statements, preferably in the person’s own handwriting, from the complainant, alleged perpetrator, and any witnesses or other employees who may have knowledge surrounding the circumstances.
(3) Always Respond Accordingly and Swiftly. Employers who gather the facts and act reasonably are generally favored by juries. For example, a company recently terminated a long-term employee following several allegations of sexual misconduct. After the termination, all of the accusers recanted their stories, and the former employee sued the company for wrongful termination. Despite this, the court ruled in the employer’s favor, finding that it had acted reasonably given the circumstances. Employers should use the results of the thorough investigation to take action that is reasonable and responsive to the results of the investigation. Employers should rely on their own progressive discipline policies to either discipline or terminate the employee.
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