LEADING WITH TRANSPARENCY:
RECOMMENDED PRACTICES FOR EMPLOYERS WHEN LEADERSHIP IS ACCUSED OF SEXUAL HARASSMENT
STOP THE HARASSMENT AND PROTECT EMPLOYEES:
The first priority guiding decision-making should be keeping employees safe and ending the threat of harassment or retaliation. When credible allegations of harassment against an organizational leader appear to have no impact on business as usual while the investigation proceeds, a message is sent to employees and to the outside world that such allegations don’t matter. Consider how risky it seems to an employee to share information about harassment with investigators while the harasser remains in a position of power over her or him. If initial allegations appear to meet a baseline of credibility, relieve the alleged harasser of supervisory duties or place him or her on leave while the investigation proceeds promptly.
BE VIGILANT ABOUT PREVENTING RETALIATION:
Make clear that retaliation will not be tolerated and hold leadership at every level accountable for enforcing this policy. Create a mechanism for employees to report retaliation – including avenues for anonymous reporting – and ensure reports of retaliation are addressed immediately and that those engaging in retaliation are disciplined up-to and including termination, if necessary. Monitor work conditions during and after the investigation by using climate surveys and take appropriate measures if employees state that they fear retaliation.
USE AN INDEPENDENT INVESTIGATOR:
When a leader in your organization is accused of harassment, the independence and objectivity of an internal investigation can be reasonably called into doubt. Retain an independent entity to conduct the investigation, rather than the Human Resources department or a law firm that regularly represents your company and depends on your ongoing favor and business. This is especially important if complaints have been made before and ignored or inadequately addressed, or if workers fear retaliation. Give the independent investigator access to the necessary documents and individuals. Make clear that the scope of the investigation includes anyone with relevant information, including independent contractors and former employees.
CREATE AN OMBUDSPERSON OFFICE THAT REPORTS TO THE BOARD OF DIRECTORS:
Many employees hesitate to report harassment or retaliation implicating a high-level harasser in the company because they believe that Human Resources’ first loyalty is to the company and, by extension, to the harasser. Individuals also fear coming forward because of concerns about what could happen to them if they make a formal report. An ombudsperson, outside these chains of authority, can be a source for independent, confidential information that can help individuals feel more comfortable making a formal report.
FOCUS ON DETERMINING FACTS:
The focus of the investigation should be on determining the facts and who within the company knew about the alleged misconduct, not protecting the employer from legal liability. The investigation should investigate all allegations of harassment that violate corporate policy or the company’s expectations of professionalism from its employees, not only those that potentially constitute a violation of law.
LOOK AT THE ENTIRE SYSTEM:
Ensure the scope of the investigation includes whether other supervisors knew of the problem and failed to report it. In cases involving a high-level executive, also look at what the board and other leadership knew and their actions.
CONDUCT THE INVESTIGATION EVEN IF THE ALLEGED HARASSER RESIGNS OR RETIRES:
The fact that the alleged harasser is no longer employed by the company is not a reason to skip the investigation. An investigation may show flaws in the reporting or accountability system that should be resolved to prevent another occurrence. It can also reveal whether supervisors or other officials acted appropriately.
Provide regular updates about the status of the investigation, the outcome, and the corrective action to the person who made the complaint. To the extent possible, make the same information public—especially if the harassment allegations are public. If complete transparency is not possible, explain why.
DISCIPLINARY MEASURES SHOULD REFLECT THE PARTICULARLY TOXIC NATURE OF SEXUAL HARASSMENT BY CORPORATE LEADERSHIP:
Appropriate disciplinary measures should take the following into account, at minimum: the severity of the conduct; the frequency of the conduct; the effect of the conduct on those who were harassed; and the difference in power between the harasser and those who were targeted. Recognize the message that is sent to employees by allowing a harasser to remain in a position of power and the harm that flows from that message. Be consistent: if a lower-level employee would be terminated based on his or her behavior, the same behavior should not be forgiven because someone is a high earner or famous. Rather than investing in golden parachutes for harassers, use those resources to begin to address the harm to those who experienced harassment or retaliation and to the company’s culture as a whole.
DO NOT USE OR ENFORCE NON-DISCLOSURE AGREEMENTS (NDAs) OR OTHER SECRECY IMPOSING MEASURES ON THOSE REPORTING HARASSMENT OR RETALIATION:
Do not impose any NDAs, confidentiality requirements, or arbitration requirements regarding the matter on those alleging harassment or retaliation. Make clear that you will not enforce any existing NDAs, arbitration requirements or other secrecy measures that could be understood to bind individuals who experienced harassment to secrecy.
Reevaluate harassment policies, training, and workplace culture that allowed harassment to continue, and make sure employees have a voice in this process. Revise hiring, promotion, and retention policies to ensure the workforce is inclusive and diverse at all levels. Revisit provisions in employment contracts that ensure organizational leaders receive payouts if they have to leave because of harassment or other unlawful behavior.
INVEST IN AND WORK WITH ORGANIZATIONS THAT SUPPORT THOSE WHO HAVE EXPERIENCED HARASSMENT:
Supporting organizations that empower and support individuals who have experienced harassment, including survivors of sexual violence, is a necessary part of the response to workplace harassment. Employers should support these organizations to address the broader social harms created by harassment.
SUPPORT INDIVIDUALS WHO COME FORWARD TO REPORT HARASSMENT OR RETALIATION:
Issue public statements assuring allegations of harassment and retaliation will be taken seriously. Public statements should discourage attacks on those who come forward and refrain from criticizing those who come forward.
Create an employee benefit fund to support employees who have experienced workplace harassment, ensuring counselors, therapists, and medical treatments are available at no cost to the employee, and connecting employees to independent advocates without cost. The plan should be designed so it has a fiduciary duty to act solely in the best interests of employees.
Give workers time off to attend counseling and treatment, as needed.
Ensure employees receive an appropriate list of referrals and that any Employee Assistance Program is appropriately trained and equipped to handle such requests for assistance.
Pay for services that address online harassment or threats current or former employees may experience as a result of having spoken up.
If those who suffered harassment were forced out of a job, career or lost the opportunity to work on high-visibility projects, provide career assistance to put them back on their intended career trajectory.