Sex­u­al Harass­ment in the Post-Wein­stein Age What’s Next for Employers? 

The Post-Wein­stein Age

The down­fall of one-time Hol­ly­wood heavy­weight Har­vey Wein­stein is increas­ing­ly look­ing like a sem­i­nal event, caus­ing a par­a­digm shift in the way sex­u­al harass­ment (and the bul­ly­ing and vic­tim­i­sa­tion that often accom­pa­nies such behav­iour) is addressed in the community.

The Wein­stein alle­ga­tions opened the flood­gates, act­ing as a cat­a­lyst for numer­ous claims against var­i­ous high pro­file enter­tain­ment fig­ures, some of whom have had career-end­ing moments of reck­on­ing. This has led to the estab­lish­ment of the #MeToo move­ment (and asso­ci­at­ed Time’s Up” ini­tia­tive) encour­ag­ing past and cur­rent vic­tims of sex­u­al harass­ment and oth­er forms of unac­cept­able con­duct to ven­ti­late their claims and hold those respon­si­ble to account.

Par­al­lel with this, a major inves­tiga­tive jour­nal­ism project is cur­rent­ly under­way in Aus­tralia, exam­in­ing alle­ga­tions of mis­con­duct against high pro­file media and enter­tain­ment fig­ures in this coun­try. This has already led to the air­ing of seri­ous claims (which are denied) against two promi­nent men. 

Beyond Hol­ly­wood?

This begs the ques­tion — what are the impli­ca­tions of this par­a­digm shift for employ­ers generally?

Giv­en the exten­sive cov­er­age of this issue, with it becom­ing a social media sta­ple and the sub­ject of many bar­be­cue stop­per” con­ver­sa­tions, it is unlike­ly that the impact of these events will be con­fined to the media and enter­tain­ment industries. 

As such, an increase in com­plaints of sex­u­al harass­ment is on the cards for 2018, with aggriev­ed employ­ees embold­ened after see­ing that pow­er, sta­tus and posi­tion don’t con­fer a licence to engage in such behav­iour with impunity.

What employ­ers need to do

More than ever, employ­ers need to be ful­ly pre­pared. In order to avoid vic­ar­i­ous lia­bil­i­ty in the unfor­tu­nate event an employ­ee engages in sex­u­al harass­ment, an employ­er needs to be able to demon­strate that it took all rea­son­able steps to pre­vent the con­duct occurring.

To achieve this it is imper­a­tive that employ­ers have:

  1. A clear, well-draft­ed sex­u­al harass­ment policy;
  2. Effec­tive com­mu­ni­ca­tion of the policy;
  3. Train­ing on the pol­i­cy, its imple­men­ta­tion and sex­u­al harass­ment prin­ci­ples gen­er­al­ly (includ­ing, con­sis­tent with the obser­va­tions of Jus­tice Buchanan in Richard­son v Ora­cle Cor­po­ra­tion, a ref­er­ence in the train­ing to sex­u­al harass­ment being against the law with poten­tial lia­bil­i­ty for both employ­ee and employer); 
  4. Prop­er imple­men­ta­tion and enforce­ment of the pol­i­cy. The pol­i­cy can’t sim­ply be an exer­cise in win­dow dress­ing or puffery, with hol­low rhetoric about com­mit­ments to coun­ter­ing inap­pro­pri­ate con­duct that aren’t reflect­ed in the cul­ture of the workplace;
  5. An acces­si­ble and effec­tive mech­a­nism for deal­ing with com­plaints of sex­u­al harass­ment which includes a clear point of con­tact (who is prop­er­ly empow­ered to ini­ti­ate the rel­e­vant process);
  6. A process where­by com­plaints of sex­u­al harass­ment are thor­ough­ly and objec­tive­ly inves­ti­gat­ed, with appro­pri­ate dis­ci­pli­nary outcomes.

To the last point, the role of the inves­ti­ga­tor is cru­cial. The inves­ti­ga­tion pro­vides the foun­da­tion upon which the employ­er’s response is built. It is a dif­fi­cult, often thank­less, but fun­da­men­tal role. A fail­ure to inves­ti­gate, or a defi­cient inves­ti­ga­tion, might be fatal to the employ­er’s chances of prop­er­ly pro­tect­ing its interests.

The inves­ti­ga­tor should be nei­ther a cru­sad­er” for a cause nor some­one who is pli­able and open to mak­ing find­ings that might be con­ve­nient or expe­di­ent but not ulti­mate­ly sus­tain­able. The best inves­ti­ga­tors in sex­u­al harass­ment mat­ters are those who are able to use high lev­el emo­tion­al intel­li­gence and per­son­al skills to sen­si­tive­ly adduce all rel­e­vant evi­dence about the claims, and then take a pro­ba­tive, foren­sic approach to the con­sid­er­a­tion of that evi­dence in mak­ing find­ings of fact. 

Employ­ers need to be prepared!

The legal (and rep­u­ta­tion­al) risks are too great for employ­ers to sim­ply either do noth­ing or engage in win­dow dress­ing” when com­plaints of sex­u­al harass­ment are made. It’s not only moral­ly wrong; it’s com­mer­cial­ly reckless.

Employ­ers should also con­sid­er hav­ing in place an action plan” in the event alle­ga­tions of seri­ous mis­con­duct (such as sex­u­al harass­ment) are made against senior exec­u­tives that might gar­ner media atten­tion. An effec­tive, inte­grat­ed legal and com­mu­ni­ca­tions strat­e­gy is cru­cial. When these types of claims are aired in the media events can move very quick­ly and employ­ers try­ing to deal with them in an ad hoc man­ner on the run are at a dis­tinct disadvantage. 

The impact of the #MeToo move­ment is going to extend well beyond the red car­pet of the Gold­en Globes to work­places in all indus­tries. The red but­ton social issue of 2018 should also now be a key agen­da item for employers.