Employers Must Engage in “Offensive Prevention”
An ounce of prevention is worth a pound of cure. To avoid workplace harassment cases, employers must proactively engage in “offensive prevention,” meaning the development and dissemination of “top-down” cultural values and training before an incident arises. Offensive prevention is more effective at preventing harassment than reactionary and defensive approaches, such as sensitivity training and nondisclosure agreements after an incident occurred.
There are, of course, often barriers preventing executives from communicating anti-harassment as a shared cultural value: the perceived poor return on the personal capital expenditure required to spend time on training; the belief that the status quo is good enough, at least at their company; and competitive world markets requiring a relentless focus on efficiency and profitability, taking already limited time and attention away from difficult-to-quantify “soft” workplace improvements. Recent headlines regarding both the pervasiveness and the consequences of workplace harassment highlight the short-sightedness of ignoring these important issues. The costs of failing to engage in “offensive prevention” are now readily apparent. The most effective preventive programs involve a multi-pronged campaign. In addition to adopting anti-harassment and fair employment practices as a core company value, effective, routine training is critical.
While there is very little data regarding the effectiveness of anti-harassment training, two recent studies reported by Scientific American make it clear that “top-down” organizational culture affects the effectiveness of anti-harassment training. The studies found that when employees perceive their employers as ethical, regardless of their personal sense of cynicism about mandatory harassment training, they learn useful information from anti-harassment training and feel the training is both important and valuable. Conversely, in workplaces where employees feel their employers tolerate sexual harassment, employees learn very little from the anti-harassment training and are unmotivated to change their attitudes or behavior following the training.
When a company implements training in response to a harassment incident that occurred in the workplace, employees may feel the employer had to provide training, as opposed to the training reflecting the employer’s values and expectations. By contrast, when an employer provides training to employees before an incident arises, as a means of imparting expectations, cultural values, and reassurance to employees, employees are more likely to feel that the training is in furtherance of the employer’s ethical values, and it is therefore more effective.
For training to be effective, employers must foster a culture of fair employment and anti-harassment, and this culture must be reflected in the words and behavior of top management. Top-level management must attend the trainings, along with their subordinates, and must engage in discussions with employees about why the company takes these issues seriously. This allows employees to see that management views the topic to be important, that everyone on the organization chart is subject to the same set of rules, and that the rules are known to all.
The quality of anti-harassment training is also critical. Training of any kind is most effective with a live trainer as opposed to prerecorded videos. While many training videos are well done, their effectiveness as a tool to convey acceptable corporate behavior cannot be tailored to the employer or the audience. A live trainer can refer to an employer’s specific policies, ensuring that employees know how to report harassment, and can address any specific issues the employer believes to be relevant to the particular workforce. In addition, videos are easy to tune out and ignore, and “learning checks” like end-of-video quizzes can often be completed without engaging fully with the material. Employees are more likely to multitask when they know the trainer cannot see whether they are paying full attention. Employees are also prevented from asking questions when the trainer is on video. Mandatory, small to mid-sized group meetings led by experienced and engaging outside moderators who allow for interactive feedback are much more effective.
Removing Bias from Internal Investigations
While offensive prevention can help prevent harassment, employers must also know how to properly address a complaint if and when one arises. The company must have a clear policy that informs employees how to raise complaints internally and that assures employees that they may raise complaints without fear of reprisal. With clear procedures in place, any complaint that is brought—no matter how seemingly small—should immediately trigger the pre-defined investigative process. If the employer decides, without the benefit of an investigation, that a particular complaint is not worth investigating, the employer may miss something bigger than what was initially apparent. Worse, the employer sends a message to employees that some complaints are not worth the company’s time to investigate or that the company is not serious about its own anti-harassment policies and procedures, which has a chilling effect on an employee’s willingness to bring any internal complaints to the employer in the future.
The mechanics of a thorough workplace investigation are fairly straightforward. Employers conduct interviews of the accuser, the accused, and any witnesses identified by both parties, ensuring that all understand the anti-retaliation provisions of the law and the employer’s policies. In addition, employers review any relevant documents, including emails, social media posts, or text messages, that may be relevant to the allegations. After the investigation is complete, the employer reaches a conclusion; that is, whether the employer’s anti-harassment policy was or was not violated. If the employer determines there is a policy violation, he or she must next determine what disciplinary action is appropriate for the accused. If the employer determines that a policy was not violated, the employer must communicate this finding to all involved and then monitor the situation to ensure that all issues are resolved and there is no retaliation by the accused.
The most difficult part of an internal investigation is removing conscious and unconscious bias from the process and the conclusion. To be effective, investigations must be prompt, comprehensive, and impartial. When an employer receives an allegation, the employer often knows the personalities of the parties involved (and may have formulated prejudgments about the propensities of one party or the other), the status and importance of the accused to the company, and the impact disciplinary action may have on business operations or revenue. In addition, following the #MeToo movement, employers are also keenly aware of the potential harm to the company’s reputation and the danger of negative public opinion if there is inaction or even the appearance of inaction. All of this background knowledge and concern for outcome undermines impartiality.
The only means of removing this bias—in either direction—is to ensure that the investigator is truly impartial, meaning he or she does not have personal knowledge or preconceived opinions about the individuals involved, or that the procedures in place minimize any potential for opinions to alter the course of the investigation or its conclusions. There are several measures employers can take to remove or minimize the effects of bias.
First, employers may choose to use an investigator from outside the particular department involved or a human resources professional who has no or limited knowledge of the employees involved. The investigator should be impervious to pressures from inside the company; he or she should not be aware of any involved party’s importance to the company or whether there is any agenda from any person inside the company. Finding an investigator within the company who is truly impartial can be difficult and sometimes impossible. Some companies have a division of human resources that is charged with completing investigations without conversation with, or influence by, company management. For most companies, however, removing impartiality requires hiring a third-party investigator with no prior knowledge of the incident or the parties involved. In either case, the investigator must be told—in no uncertain terms—that there is no wrong conclusion, regardless of the consequences to the company and to the parties involved.
Second, a clear work flow for the investigation of any claim should be developed and disseminated to all employees so that all expectations are clear and transparent before a complaint is brought. Any complaint should automatically trigger initiation of these procedures, which should be closely adhered to and seen through completion. Not only does this process help to remove bias, given that decisions regarding investigative procedures are not made on a case-by-case basis but are followed per protocol, but all parties involved are aware of the procedures and can see what steps will be taken, reducing the perception of bias among the parties involved in the complaint, uninvolved employees, and parties outside the company. Strict adherence reinforces the cultural values of the company with regard to an anti-harassment workplace and promotes transparency and accountability.
The results of an impartial investigation may be difficult for the employer. The investigation may lead to a high-value employee’s censure or termination, or it may find—despite the employer’s concern over public opinion—that the accused has not violated any policies and that discipline is not warranted. Whatever the outcome, the employer is in a better positon to grapple with the fallout if the investigation was conducted without influence and in an earnest attempt to uncover the truth. Even if the outcome is not popular, an impartial investigation provides the employer with a measure of protection from unhappy constituents, whether inside or outside the company.
The #MeToo movement brought a sharp cultural shift in the visibility of and conversation around workplace harassment. To reduce the chances of litigation, employers must cultivate a culture in which harassment is antithetical to a company’s core values. Companies must prioritize offensive prevention—as opposed to defensive reparation—both to avoid harassment claims and to clearly foster the company’s ethics and cultural values.
Employers must also have cogent policies and complaint procedures, and must follow them without deviation each time a complaint is raised. Employees need to know that their complaints will be taken seriously. Otherwise, employees will seek recourse outside the company, as opposed to making an effort to resolve concerns internally. Finally, employers must remove conscious and unconscious bias from internal investigations, either by using an outside investigator or insulating the investigator from the opinions or agendas of others.
The modern workplace is forever changed as a result of the #MeToo movement. The new visibility of harassment in the workplace has created an opportunity for employers to rework policies and procedures to ensure a more hospitable environment for all employees. Primary prevention and clear, transparent policies free from bias hold the promise of protecting both employees and employers.
Christina L. Lewis is a partner at Hinckley Allen in Boston. Lisa A. Zaccardelli is a partner at Hinckley Allen in Hartford, Connecticut.