Employers Must Provide Ample Due Process in Sexual Harassment Cases
The #MeToo movement, in which increasing numbers of women have come forward to complain about sexual harassment, and in some cases, sexual assault, has important lessons for employers. Employers have a duty to provide a safe, harassment-free environment. But they also have an obligation to offer employees accused of harassment or wrongdoing assurances an objective investigation will be conducted into any complaint. Without sufficient investigation and checks and balances, employers could find themselves facing claims of defamation and wrongful termination from those accused of misconduct. Acting with great haste is not always the best course of conduct.
Unfortunately and somewhat understandably given privacy concerns, there has been little transparency about the process employers follow or followed in the headline cases that have resulted in men leaving top positions in media and entertainment companies, leaving the public to question the quality of corporate investigations or even if an investigation occurred, and wonder if some men are being unfairly dismissed. Some of that critique is fair. Thorough investigations do not send the message that the complainant is not believed; it is taking the claim seriously, investigating its validity and then taking the appropriate action thereafter.
It is challenging for employers when employees, for whatever reason, do not immediately report acts of alleged harassment and assault. Creating an open environment where employees feel supported in coming to HR with concerns is the first step to ensuring a safe workplace. When allegations do surface, it is vital to conduct an impartial investigation that takes the rights of all concerned into account providing assurances to all employees decisions will be made only after a thorough and objective investigation is completed. Otherwise, employers face both legal risk and a backlash among their workforce, which will not help employee relations and productivity.
#MeToo is a shift in workplace relations that is still developing. Smart employers should know in advance the steps to take in investigating claims. It is as important as a fire or earthquake drill. Missteps risk similar devastating consequences.