Reporting and Investigating Harassment in the Age of Social Movements
By: Ephraim J. Pierre, Nila Merola, Anne Dana, and Loren Gesinsky
Social movements such as #MeToo, #TimesUp, and #BlackLivesMatter have created an ongoing conversation about workplace culture. For many employers, simply satisfying basic legal requirements is a thing of the past. The future, instead, is focused on creating and fostering a workplace culture of respect and inclusion by re-evaluating workplace policies, practices, and procedures. As part of an ongoing series, we continue to examine what it means to change a workplace culture, what initiatives work and do not work, and what employers who want to “go the extra mile” can and should be thinking about.
In our last post, we examined effective anti-harassment training. In this post, we will focus on effective reporting systems and internal investigations. In June 2016, the Equal Employment Opportunity Commission (EEOC) issued a report regarding harassment in the workplace. In the report, the EEOC observed that approximately 70% of individuals who experienced harassment did not report such conduct to a manager, supervisor, or union representative. Even more troubling, approximately 90% of individuals who experienced workplace harassment never formally filed a complaint with their employer. Instead, the report found that employees often avoid the alleged harasser, ignore or minimize alleged harassing conduct, or confide in friends or trusted advisors.
Given the resoundingly high percentage of employees who do not report harassing conduct, it begs the question as to why employees are so reluctant to report harassment. The answer, according to most studies and anecdotal evidence, is that non-reporting employees often fear an ineffective response and retaliation. Sometimes employees simply do not know or recall how and where to report harassment.
Effective Reporting Systems and Investigations
According to the EEOC’s June 2016 report, current reporting systems and investigation procedures are simply not instilling confidence in those who experience or observe harassment, and thus inappropriate conduct often goes unreported. The EEOC’s report observed that effective reporting systems and investigations are among the most critical elements of a holistic anti-harassment effort. As a result, employers should carefully re-examine their reporting systems so that harassing conduct is reported, promptly investigated, and appropriately addressed.
To that end, the EEOC found that, to increase effectiveness, reporting systems and investigations should contain certain components. Specifically, employers should:
Adopt and maintain a comprehensive anti-harassment policy as well as a clear and prominent open-door policy, which encourages employees to report harassing behavior not only to direct supervisors, but also to management personnel;
Ensure that the anti-harassment policy describes in detail how to complain about harassment, and that such policy is communicated frequently to employees in several forms and methods;
Offer multi-faceted reporting procedures, including multiple points-of-contact with geographic and organizational diversity, where possible;
Make clear that retaliation will not be tolerated and outline the steps employees should take to report retaliation if it occurs;
Ensure that management personnel are held accountable for monitoring and stopping harassment;
Periodically “test” reporting systems to assess their effectiveness;
Devote sufficient resources so that harassment allegations are objective as well as promptly and thoroughly investigated;
Conduct regular training for investigators, human resources personnel, and management tasked with conducting investigations;
Ensure investigations are kept as confidential as possible under applicable federal, state, and local laws; and
Ensure that investigations result in a proportionate and consistent response.
Non-Traditional Ideas for Improvement
In addition to the measures outlined above, employers may also consider exploring non-traditional means for improving reporting systems. In particular, recent technology and outside consultants may provide useful tools for mitigating perceived biases and fear of ineffectual response and retaliation. Below are novel measures that some employers utilize:
Mobile Applications/Online Platforms: Several recent mobile applications and online platforms (i.e., AllVoices, STOPit, tEQuitable, Callisto, Talk to Spot) allow employees to report harassing conduct anonymously through pre-populated forms or interactions with artificial intelligence systems. These mobile applications and online platforms solicit key details regarding harassment allegations such as potential witnesses, incident dates, narrative responses, and documents. These mobile applications and online platforms claim to provide a safe space for raising concerns, free from external interference and potential retaliation. However, these technologies do pose certain challenges. One challenge is that these technologies may embolden employees with non-meritorious claims to submit petty workplace grievances, which nonetheless may require prompt investigation to ensure nothing more material has been missed. Another challenge is that the anonymity of an accuser/observer makes it more difficult to investigate promptly and thoroughly because of the lack of an identifiable person with whom to meet and follow up.
External Consulting Groups: Third-party consulting groups have also responded to the #MeToo movement by creating company-specific tools through which employees can file complaints. In turn, consultants assess the complaint, write an action plan regarding an investigation, and provide a third party at least arguably more independent than someone in-house to conduct the workplace investigation. These services promote their experienced personnel as well as their ability to mitigate perceived bias towards human resources and management personnel among employees. Employers should note that using an external service does not change an employer’s obligation to investigate claims. Thus, employers should carefully consider whether consultants are indeed qualified to handle complaints. Further, an employer’s uniform response is helpful in investigating and later defending against retaliation suits. External consultants could introduce variance into the investigation process, which may weaken potential defenses in litigation.
Hotline Services: While ordinary hotlines simply provide employees a voicemail or email inbox to report harassing conduct, third-party services now offer more interactive complaint intake procedures. Several third parties are now offering human resources professionals who intake complaints and produce a report that allows the employer to investigate potential claims internally or externally with a consultant. As noted above, employers should carefully consider whether consultants are indeed qualified to receive complaints and formulate responses. Further, employers should also consider how consultants augment rather than replace in-house human resource professionals. Employers should also consider internal training for human resources professionals and supervisors on how to respond to a complaint from outside consultants.
Big Data: Employers now routinely collect data and metrics regarding efficiency and productivity. To encourage accountability, some employers collect and monitor data relating to harassment complaints and their resolutions. Employers may elect to collect and analyze this data with an eye towards recalibrating processes if the data suggests significant room for improvement. Employers should note that trends revealed by complaint data and analytics may trigger investigation obligations. Further, employers should note that plaintiffs’ counsel may seek complaint data and analytics in future litigation in an effort to exploit such trends.
Importantly, while additional and novel reporting processes may be beneficial to obtaining data and addressing complaints, using external technology and professional services does not change an employer’s ongoing obligations to investigate harassment allegations promptly and effectively. Indeed, new methods for reporting harassment may mean a resulting uptick in potential harassment complaints, including dated claims and claims against high-value employees. Employers should be prepared to fully investigate and address such claims. Nonetheless, the potential for improved reporting systems via technology and external servicers is promising for employers and employees alike.
As we move toward a future more focused on creating a positive and inclusive workplace, rather than just complying with the law, employers should review their existing reporting systems and investigation procedures and consider whether and how they could be more effective for their specific workforce and culture. And robust reporting and investigation systems only achieve maximum effectiveness if they mesh seamlessly with other aspects of a holistic anti-harassment effort.
