In the Era of #MeToo, Employers Should Consider Complaint Response Plans

Article

New Jersey Law Journal

May 21, 2018

Since the social media hashtag #MeToo spread virally in October 2017, the near daily revelations of sexual harassment and assault across numerous industries have encouraged employers to consider changes in employment practices to promote safer and more inclusive workplaces for all employees. While preventative initiatives are critical—and it is positive news that many companies have, in recent months, rolled out revised harassment and discrimination policies, reevaluated their reporting channels for complaints, and implemented more robust prevention of workplace harassment training programs—employers’ response to the #MeToo movement should not end there. Rather, employers should evaluate what steps they can take now to be well-prepared to respond to any future report of harassment, from the time a complaint is lodged through the conclusion of an investigation and any necessary remediation.

The overarching question employers should consider is this: When an employee makes a harassment complaint, is the company ready to respond? Although most companies have written policies prohibiting workplace harassment, employers can experience challenges responding quickly when employees report harassment. Regardless of an employer’s good intentions to properly respond to complaints, the absence of a previously thought-out response plan can result in difficulties with the intake of the complaint, delays in initiating an investigation, failure to properly investigate or remediate the alleged harassment, inadequate communication with the parties, or some combination of these unforced errors.

Although having a complaint response plan is not legally required, in light of the increased number of reports sparked by the #MeToo movement, and heightened public expectations of the speed and manner in which employers will respond to such complaints, advance preparation is time well spent. Rather than handling harassment complaints on an ad hoc basis, employers should consider the steps that will be followed and the internal and external resources that may be needed if and when complaints are made.

Developing a response plan has multiple benefits. First, in this era of social media and the 24-hour news cycle, companies—particularly those that are in the public eye—want to be ready to act immediately when made aware of harassment or assault allegations. Employees, as well as the media and public, expect that immediate action will be taken when harassment allegations come to light. Having a response plan allows a company to address in advance questions that can otherwise cause delays when a harassment complaint is made. Second, having a plan for responding to harassment complaints takes personalities out of the equation when a report is made. A well-considered plan helps avoid a circumstance in which the identities of the parties (such as the involvement of a “superstar employee”) are perceived to influence the manner in which the employer responds to a complaint. Third, advance planning permits necessary stakeholders within the company to be part of the process, allowing the employer’s response to harassment complaints to be considered as part of the company’s proactive diversity and inclusion efforts.

In developing a response plan for future harassment complaints, companies should evaluate their preparedness by considering the following key issues:

Intake of Complaints. Once an employee has raised a concern about workplace harassment, or an employer is otherwise put on notice of a harassment allegation, who is responsible for the intake of the complaint? The #MeToo movement has highlighted instances of complainants coming forward and feeling frustrated from the outset due to the reporting process itself. An employer should consider steps to ensure that, when a report is made, the complainant understands that the company is taking their concerns seriously. The intake process should be handled by someone who has training and/or expertise in this area, will be perceived to be unbiased, and will be capable of sensitively and confidentially eliciting information to initiate an investigation. In addition, whoever conducts the intake should be able to answer employee questions regarding how the investigation process will proceed. To encourage reporting, companies may wish to consider the use of external resources, such as reporting hotlines, as part of their intake processes.

Ownership of the Complaint. After the initial intake of the complaint, who will “own” the complaint to ensure that the company’s response is thorough and efficient, and that the process flows as smoothly as possible? While confidentiality should be maintained to the extent possible, who must be informed of the complaint internally, and how will that communication occur?

Interim Measures. Who will be responsible for the implementation of interim measures (such as a temporary change in reporting structure or leave pending investigation) as needed to ensure that the complainant is not subjected to additional harassment and/or retaliation while the complaint is pending? What steps will the company take to allow the investigation process to play out and avoid a rush to judgment against the accused? Who will be responsible for monitoring the effectiveness of these measures? How will business-as-usual continue while an investigation is underway?

Identifying the Investigator. Often the most critical decision the employer must make in responding to a report of harassment is who will investigate. In many circumstances, complaints can be properly investigated using internal resources from the company’s human resources, employee relations, legal, and/or compliance departments. However, in some situations, external investigations are advisable. A company should be prepared to quickly assess whether a complaint should be directed to an outside investigator due to the parties involved, the nature of the allegations, or the potential perception that an internal investigator may have a conflict of interest. For a situation in which the retention of an external investigator is necessary, the employer is well-served to have a roster of pre-screened, experienced investigators who can be quickly called upon when a need arises.

Fact-Finder vs. Decisionmaker. Prior to the commencement of an investigation, the company should determine what role the investigator will play and the scope of the investigation. Is the investigator exclusively a fact-finder, or is he or she also expected to decide whether a violation of company policy has occurred? The employer should also assess in advance who will be the decisionmaker. In other words, once the investigator has made factual determinations, who at the company will be responsible for deciding whether any policy violations have occurred, and, if so, what disciplinary and/or other remedial action is warranted?

Internal Communications During and Following the Investigation. During the pendency of the investigation, who will be responsible for communicating with the complainant, the target of the investigation, and any other witnesses? How will the employee’s complaint be acknowledged? How will the parties be updated regarding the status of the investigation and its conclusion? Who will coordinate with additional witnesses (particularly if an external investigator is involved) to schedule interviews and assist in the collection of any necessary documents or data?

External Communications. Finally, in light of the numerous employers that have made headlines in recent months due to allegations of sexual harassment and assault, there is no time like the present for employers to consider how they would respond to media attention or social media activity. In such a situation, who would be the company’s public spokesperson? A company that does not already have a communications staff may want to consider having an outside communications firm available to respond to inquiries.

With some advance planning to determine the steps that will be followed in response to complaints of harassment or assault, and to assess the internal and external resources that will be required, employers can be better equipped to respond to complaints quickly, to promptly and thoroughly investigate, and to take whatever corrective action is necessary to stop the alleged misconduct and prevent future workplace harassment.