Reports of sexual harassment and discrimination in the workplace appear to be at an all-time high. The media reports daily on allegations across every industry—entertainment, technology, media, law, venture capital, finance, government, and more.
The actions taken after an employee alleges harassment or discrimination can be key in limiting the employer’s potential liability and resulting adverse publicity. This article examines the important steps a company can take in responding to sexual harassment or discrimination claims, both with respect to addressing workplace allegations as well as dealing with any resulting litigation. While legal and policy considerations are key, effective communications are equally essential, and a team of HR, legal, and (where appropriate) communications professionals should coordinate carefully with senior management on the company’s response.
1. Lawyer up
Sexual harassment or discrimination complaints can lead to serious liability, including punitive damages designed to punish the company for inappropriately handling the complaints. The company may face significant liability even if a low level supervisor fails to comply with company rules and policies. Not all of the proper responses to these claims are intuitive and many require knowledge of complex applicable laws and regulations.
The company should involve outside legal counsel experienced in handling such claims as soon as possible to navigate the thicket of related legal issues. Counsel can provide guidance on compliance with legal requirements for the response as well as assist the company in determining whether early resolution is advisable or possible.
With the assistance of legal counsel, the company can also take the appropriate steps to ensure that communications with executives, Board members, and employees are protected by attorney-client privilege. To protect that privilege, communications with the company’s legal counsel should be restricted to those individuals with a legitimate need to know and include a subject line that reads “Confidential and Subject to Attorney-Client and Work Product Privileges.”
2. Notify the Board of Directors promptly of significant allegations
Board members may be able to provide helpful advice regarding difficult allegations based on their experience advising other companies. Additionally, Board members hate to be surprised with bad news, especially if that news shows up in the media before they have heard about the claim.
Accordingly, once an employee makes a significant allegation of sexual harassment or discrimination, especially one likely to bring media attention, the CEO, ideally with the General Counsel or outside counsel (to ensure the communication is privileged), should promptly inform the Board of Directors.
3. Treat the complaining party with respect
Employees usually find it very difficult to make allegations about sexual harassment or discrimination. They worry about the consequences and the effect the complaint will have on others in the workplace. They may feel vulnerable and concerned about losing their jobs.
The employer should show respect, understanding, and concern, including in initial responses to the complaining party. Employees and managers may have misbehaved and violated company standards, and the complainant may be legitimately upset and concerned about that behavior. Swift and appropriate action, including thanking the employee for raising the concern and quick initiation of an investigation, sends a message not only to the complaining employee but to others watching for the company’s reaction.