Preventing sexual misconduct at work starts with culture

Although attention has focused heavily on individuals in the entertainment and media industries, of late—starting with the downfall of Hollywood mogul Harvey Weinstein—the lessons the sexual harassment allegations impart apply to every company across every industry. “This is one of the biggest trends in many, many years,” Ingrid Fredeen, vice president and senior product manager for NAVEX Engage, said during a recent Webinar on the biggest ethics and compliance trends in 2018.

For companies learning to operate in this new normal, many ethics and compliance teams are starting to reevaluate how to address sexual harassment in the workplace, including whether they need to revise their anti-harassment policies, procedures, and training. “More and more companies are coming to us, rethinking their approach on this topic,” Fredeen said.

For all other prudent ethics and compliance officers, senior leaders, and board members looking to avoid a sexual harassment PR-crisis, consider carefully the following preventative measures:

Pre-screen employees before making any significant appointments, particularly of senior executives and board members. “There is a rich amount of material in the public domain,” Daniel Nardello, founder of investigations firm Nardello & Co., said during the Webinar, sponsored by law firm Morrison Foerster, addressing workplace misconduct issues. Examples of materials that should be extensively reviewed include past criminal records, social media communications, and any previous litigation filed against the individual, Nardello said.

Do not underestimate the power of training. Conversations that cross the line between harassment and discrimination should not be allowed, but it’s on employers to help employees navigate through these difficult conversations: Have employees been educated about the difference between respectful and disrespectful conversations? Do they understand what behavior is allowed and not allowed?

Anti-harassment training should be conducted at least every other year. And sign-in sheets should be kept as documentation to show not only that anti-harassment training has been provided, but also who has received that training, said Janie Schulman, a Morrison Foerster partner.

“This is one of the biggest trends in many, many years.”
Ingrid Fredeen, Vice President, Senior Product Manager, NAVEX Engage

Training on anti-harassment matters should also address the company’s policies on misconduct that occurs outside the four walls of the company, or after work hours. “Talk through those situations,” Fredeen of NAVEX Engage said. “Come up with guiding principles.”

According to the findings of a new study, provided exclusively to Compliance Week from Neighborhood Watch for Corporations and based on an online survey of 400 U.S.-based employees who personally experienced sexual harassment on the job, 35 percent of respondents said they were not aware of employer-provided training. Twenty-six percent said they either had no option available to report sexual harassment or were not aware of how to report it.

Ensure that communication channels for employees to report concerns are both available and effective. A vital aspect of addressing anti-harassment issues in the workplace is ensuring that employees are aware of and have readily available and effective channels to report incidents. Today more than ever before, social media channels are providing a voice and a support network to victims of sexual harassment. “What you’re seeing now is that people are feeling much more emboldened to come forward without the fear of retaliation,” said Morrison Foerster partner Carrie Cohen.

The bottom line is that employees no longer need to rely on their employers to get issues resolved. “They now have other platforms to express themselves,” Fredeen said.

In fact, the Neighborhood Watch for Corporations survey indicated that employees today are far more likely to report an incident of sexual harassment using a guided third-party app in which users have the choice to remain anonymous than they are to report an incident of sexual harassment to a hotline or directly to a manager.

The average employee has a multitude of reporting channels with which to report incidents, from hotlines to web forms or directly to a manager or supervisor, and any one of these reporting channels could serve as a deterrent to reporting misconduct—if an employee has concerns about anonymity, for example. “This research confirms that employees feel underserved by the existing, increasingly outdated mix of hotlines, forms, and departmental e-mails,” says Neighborhood Watch for Corporations CEO Scott LaVictor.

“The good news for those who believe we can and must do more to improve reporting methods is that we now have available the ability to provide employees an impersonal reporting channel that is more accessible, meaningful, and effective,” LaVictor adds. Neighborhood Watch for Corporations, for example, offers a machine intelligence solution that mimics an expert interview regarding workplace concerns via a platform that combines a mobile app, desktop app, and telephone hotline that enable anonymous, two-way communication.

Investigate allegations promptly. Keep in mind, information that triggers an investigation can come from anywhere, including allegations made in the media or through other unconventional reporting methods like social media. “It is important to air on the side of caution and look at these as credible allegations,” said Morrison Foerster partner Josh Hill.

GETTING ANTI-HARASSMENT TRAINING RIGHT

Below are some tips on how to get anti-harassment training right, as discussed on NAVEX Global’s recent Webinar, “Top 10 ethics and compliance trends for 2018.”
Why training fails:
When there is mediocre or check-the-box training
When the culture is weak (harassment tolerated, retaliation permitted)
When internal systems fail
Preventative techniques:
Cover emerging issues, including evolving concepts around sexual harassment; respect in the workplace (civility training); bystander intervention; and social media and technology avenues available in the workplace.
Drive changes in behavior, including having learners identify problems, apply knowledge, and test assumptions; and train on best behavioral responses for situations.
Join the "You Can't Delegate Ethics" Initiative. The issue of sexual harassment cannot be delegated to policies or training, but rather solutions driven by leadership. Join the conversation to define the full scope of the issue and most comprehensive solutions.
Source: NAVEX Global

An internal investigation should be conducted as promptly as possible. Determine whether to bring in outside help—forensic accountants or a reputable outside investigator, for example—and ensure that all appropriate witnesses are interviewed and that all relevant documents are reviewed and maintained.

When determining the scope of the investigation, consider the nature and gravity of the allegations; the source of the allegations; the circumstances under which allegations are received; and whether you’re able to corroborate the initial allegations. “Flexibility is key,” Hill said. “The scope that is set initially may not be the scope of the investigation as you continue.”

Hold people accountable and monitor behavior. Have a system in place in which supervisors and management understand and know how to handle different types of accusations. For example, what is the company’s policy for handling a he-said-she-said scenario that doesn’t necessarily amount to illegal misconduct but that may make an employee feel uncomfortable—a dirty joke, an inappropriate comment, a playful tap on the rear?

“The bottom line is that an investigation isn’t always going to yield a clear answer,” Schulman said. In these circumstances, employees should be refreshed on the company’s anti-harassment policy, and the employee coming forward with the allegations should be reminded of his or her anti-retaliation rights.

Important it is to keep in mind that the accused also has rights, Schulman added. Be careful that the investigation doesn’t become a witch hunt, and that the employee isn’t fired without substantiated allegations, because that could backfire on the company by turning into a wrongful termination claim, she said.

Have “the talk.” As uncomfortable of a conversation as it can be for everybody, sex needs to be addressed in the workplace. A survey conducted last year by theBoardlist found that 77 percent of 400 board members at public and private companies had not discussed accusations of sexually inappropriate behavior and/or sexism in the workplace. Moreover, 88 percent said they had not implemented a plan of action following revelations in the media, and 83 percent said they had not re-evaluated the company’s risks regarding sexual harassment or sexist behavior at the workplace.

Common reasons cited in theBoardlist survey for not having discussed issues of sexually inappropriate behavior and/or sexism in the workplace included a perception that it was “not an issue,” “not a focus area,” or “not a concern for the company.” Other reasons included that the issue “just hasn’t come up;” “board members are men;” or it wouldn’t be “well-received.” Each of these reasons underscore the need for more discussions on anti-harassment at the board and senior-management level.

“For every company—public and private—issues of culture, gender equality, discrimination and harassment are now rightfully coming to the attention of company boards,” theBoardlist founder Sukhinder Singh Cassidy said. “Addressing these issues needs to become a standard practice, not an afterthought.”

Learn from past experiences.  Prudent ethics and compliance officers should have a second look at any previously addressed harassment allegations, ideally with the help of counsel, Fredeen said. “We can all learn from how we did, or did not, properly address things in the past.”