If you want to get a flavor for how employers around the country are responding to the #metoo movement, with its accompanying increase in reported incidents of sexual harassment at work, look no further than these 15 steps provided by an employment attorney to AllBusiness.com
To be fair, some of these steps (if performed in good faith) are beneficial to victims of sexual harassment and intended to help resolve the issue. For instance, who can take issue with the advice to “promptly and thoroughly investigate.” But my larger take-away was the degree to which employers are stacking the deck against the employee that wishes to seek legal redresss.
This starts with the #1 advice to employers: “Lawyer up.” The company is advised to involve experienced outside counsel early, and to “take the appropriate steps to ensure that communications with executives, Board members, and employees are protected by attorney-client privilege.” In other words, make sure your lawyer is in the room with management and the relevant players whenever anything related to the victim’s claim is discussed. Also, employers are advised to limit the contact of outside counsel to only those people that need to know, as well as to include legal disclaimers on attorney-client confidentiality and the so-called work product doctrine in their emails with counsel. In short, the goal is to limit, early on, the amount of information that the victim employee can get at for use in court.
Fairness: Fair is Good, Appearing to Be Fair is Also Ok….
But my personal favorite is probably the tip provided in investigating the victim’s allegations: “Fairness is important. The investigation must be evenhanded, and both be fair – and appear to be fair – to all involved.” (emphasis original). I love the authors emphasis here. The not-so-subtle-message, especially in the context of all 15 recommended steps for the employer to take to protect itself, appears to be that while the company should strive to resolve the situation with an eye toward the truth, it should do so while accumulating a defensive paper trail (e.g. confidential communications, investigative reports that “appears” to be fair) to nip lawsuits in the bud.
Employers undoubtedly have many significant advantages over most employees, both structurally and in terms of their war chest. But it’s not all doom-and-gloom. If you experienced sexual harassment at work and are thinking about taking action, the earlier you discuss it with an attorney, the better. If the employer is lawyering up, you should too!