The current national climate of hyper-awareness for workplace discrimination and harassment prompted the Ardmore Chamber of Commerce to present a program on best business practices to avoid potential liabilities and litigation during the “#metoo era.”
Mary Snyder, attorney in the Labor & Employment Practice Group for Crowe & Dunlevy, presented the program that focused on ways to improve the process of accepting and investigating complaints while maintaining a productive, safe workplace void of unnecessary risks.
“Just a few years ago, I was doing a sexual harassment training and I was thinking in my head, ‘Why do we even still do these anymore? I don’t even think these are still relevant,’” Snyder said. “It was within a year from when I had that thought that the Me Too movement popped up. We started to learn that actually, we still have a lot to learn about sexual harassment, we just weren’t hearing about it.”
Snyder said the training process hasn’t changed much, with only a few tweaks needed to the basics that are already in place in most workplaces.
“When this started in October of 2017, it seemed like this was only related to media moguls,” Snyder said. “The kind of typical profile of somebody who became the target during the Me Too movement was somebody with a high level of power within the company because of their client relationship, their persona or their actual position in the company.”
Snyder said most companies impacted by the Me Too movement had harassment training programs in place but that the people in positions to enforce the programs were not in powerful enough positions to do anything about the harassment without risking their own jobs.
“So you ended up in a position where HR was either trying to do something and not being heard or not doing anything about it,” Snyder said.
According to Snyder, the movement has had a much broader impact on companies,  amounting to a 13% increase in sexual harassment claims from 2017 to 2018. The movement has also forced changes in acquisitions and mergers with added representation and new tax rules regarding payouts of settlements.
“We see outside groups that are funding litigation,” Snyder said. “That means individuals who claim to have been subjected to harassment and might otherwise take a quick settlement because they need to be working and not focusing on litigation. They can get funding from these outside groups to give them money that they will then pay back if they win in the litigation to help carry them through so they can focus on litigation instead of getting a new job and moving forward with their lives.”
Snyder said the key to avoiding liabilities was in the details, stressing the need for extensive documentation, investigations and immediate follow through and the potential need to update existing policies.
“You need to make sure it (policy) prohibits harassing behavior even if it doesn’t rise to the level of unlawful behavior,” Snyder said. “You don’t want to be in a situation where you’re doing an investigation and your policy says ‘You’ll be terminated if you engage in unlawful harassment.’ You don’t want to be terminating someone based on some admission that what they did was unlawful, because if you then later get sued, that looks bad. You want a policy that says ‘harassing behavior is against company policy, even if it doesn’t rise to the level of unlawfulness.’ In your harassment training, you always hear that it has to be severe or pervasive, and there is all kinds of case law on what that means. You don’t want to have to prove that legal standard to decide if you are going to terminate someone. Maybe one time of grabbing somebody’s private parts is neither severe or pervasive, one can argue that point, but that might be enough to terminate them regardless of if that reaches the level of unlawful harassment under the law.”
Snyder stressed the importance of thorough documentation in all allegations, even when the alleged victim declines to file a written complaint, noting that verbal complaints should receive the same level of documentation and investigation, which should be included in any policy regarding the matter.
“You can ask them to write it down, and if they are unwilling to, whoever takes in that verbal complaint can write it out and ask them to sign off on it,” Snyder said. “But you can’t just say that ‘we are not going to do anything about it because you made a verbal complaint instead of a written complaint.’”
Snyder said company policy should include multiple avenues to file complaints allowing alleged victims a way to avoid their alleged harassers either via direct supervision or somewhere along the chain of command to avoid any possible conflict.
“In most companies that includes even a route above HR,” Snyder said. “Either to a board member or an officer, so if this person says ‘It’s the HR officer that is harassing me,’ there is some other route to get people to where the company knows. You want people to complain so you can investigate and take prompt remedial action. There are legal defenses that come with having done so.”
Snyder warned that the concern of frivolous complaints could lead to a corporate climate that delays or ignores serious allegations leading to greater liabilities and potential for litigation, adding that policy should also include protection against potential retaliation to legally protect employees making the complaint.