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By Josh Heggem
Josh Heggem is a partner at Pemberton Law in Fergus Falls, Minn., and serves clients all across Minnesota and North Dakota. He is an expert in labor and employment law, and he spends a lot of time conducting workplace investigation.
For the last 11 years, attorney Josh Heggem has represented employers in workplace investigations. One area that he specializes in is sexual harassment claims. Over the last couple years, there has been an increased focus on sexual harassment as more and more women speak up. This increased exposure is creating a national conversation, which isn’t necessarily a bad thing.
“I get asked a lot, ‘Have you been getting more sexual harassments complaints in the last year since the Me Too movement or Harvey Weinstein?'” said Heggem. “I would say no. It’s always been there. What’s been different, from my perspective, is the mindset everybody has toward sexual harassment. I spend a lot less time convincing my clients to actually do something about it. One of my points is investigate it. Don’t ignore it. I spend a lot less time convincing CEOs and HR to spend time on this when they receive a complaint, which I think has been really helpful.”
1. Do not ignore sexual harassment complaints. Always investigate. The level, and depth, of investigation and follow-up will depend on the circumstances, but it is never OK to do nothing. If you are not comfortable investigating, hire an experienced outside investigator to do it for you. You will spend a little time, energy and money now investigating, but it is guaranteed you will spend a lot less time, energy and money now, up-front, than you will on the back-end after your company gets sued.
2. Review your policy and remove any kind of language that discourages reports, such as bold, underlined language that says, “EMPLOYEES WHO FALSELY REPORT HARASSMENT WILL BE TERMINATED IMMEDIATELY WITHOUT DELAY.” Encourage employees to report anything that makes them uncomfortable. False reports, in my experience, are very rare. And you can deal with that rare occasion when it happens even without the bold, underlined language in your policy. We want reports, so we can deal with them, and this will help us improve our overall workplace culture. Many of the really egregious situations I have dealt with grew out of decades of employees feeling like they could not report things that made them uncomfortable and/or a mistaken impression that if they did make a report, nothing would happen. Start working now to change this mindset by actually addressing complaints when they arise, and by making sure employees know they are encouraged to report, and cannot be retaliated against for reporting.
3. Once you receive a complaint, take immediate steps to prevent further incident. The employer has a “knew or should have known” liability standard, and must take reasonable steps to prevent harassment from re-occurring. You can use paid administrative leave, or find another job for the accused temporarily that avoids contact with the victim and/or other possible victims (if possible) while you investigate.
4. If you are the one who receives a sexual harassment complaint, do not immediately begin to interrogate or express skepticism to the victim. Leave that for the investigator, at a later time (even if the investigator will end up being you). Your job is to simply thank the person for coming forward and get down the necessary information so you can take immediate steps to preserve evidence, prevent further incident and line up an investigation.
27% of women said they have been victims of sexual harassment in the workplace.
5. Don’t overpromise to victims or the accused. Telling the victim when you receive the complaint, “He’ll pay for this,” or the accused, “Don’t worry, I know this complaint is a joke, I know you wouldn’t do this and you’ll always have job here,” sets the employee up for disappointment, makes you look biased or worse, you might be flat out wrong. Don’t draw conclusions until you have all the facts. Keep an open mind.
6. Not every sexual harassment complaint should result in an immediate termination. Really egregious, Harvey Weinstein stuff, sexual assault, etc. will result in immediate terminations. But someone telling one off-color joke will not. We just need to have a conversation with that person about appropriate behavior. Many times that’s the only time we ever have to talk to that person.
7. Train your supervisors that the employees they supervise are not their peers. Supervisors are held to a higher legal standard under the law. They are in an inherent position of authority over employees they supervise such that there is a question whether any sexual interaction between a supervisor and a subordinate employee can ever really be voluntary. Making sexual jokes to employees you supervise will always end badly, and will put you in a position of one day having to explain away conduct that, when taken out of context, looks very offensive. Protect yourself by knowing you are in a position of authority and acting accordingly.
8. Men – don’t let the current climate lead you to think that you must adopt a policy that you will not talk to women, people of color or any employee who has any protected class characteristics. This is not equality. Refusing to have business lunches with women because you are afraid of women falsely accusing you of harassment is just as detrimental to women as actual sexual harassment. Find a way to treat all of the humans in your workplace like humans, and not men vs. women, and you will be doing a lot more to promote equality and a healthy workplace environment than you will by avoiding women altogether.
19% of American adults said they have been victims of sexual harassment in the workplace.
9. Train your employees, supervisors, everyone, on sexual harassment, at least annually. Use all different kinds of methods. Bring in an outsider once in a while to do training. Clients hire me to do sexual harassment training all the time. I like to tell stories that are grounded in reality, illustrate points with funny, really egregious situations that keep the presentation interesting, but also make sure to drive home the point that this is serious business, and sexual harassment will not be tolerated under any circumstances. I also spend a lot of time in the training talking about the “little things” (see next point).
10. Pay attention to your workplace culture. If you watch the news, you might think sexual harassment is only really egregious behavior, like forcing women to have sex with you in order to get put into a movie (Harvey Weinstein). Obviously, that is sexual harassment, but much more often, the situations I run into are much smaller, and more nuanced, than that. They’re the “bumbling jokester” who tells jokes about “women drivers” or compliments women’s bodies, or gives people creepy, leering looks or sweaty hugs or brushing up against women “accidentally.” Do not tolerate rudeness and incivility. Have an “offensive behavior” policy that goes well beyond the legal definition of harassment. Promote kindness. If you tolerate people walking around and demeaning women, telling jokes about the “front desk girls,” telling women they were ‘hired for their looks,” always asking women to take notes at meetings, dropping things on purpose so women have to bend over and pick them up, giving women co-workers the “once over,” talking about women co-workers in a sexualized fashion, all of these small things eventually add up to bigger things, and then one day something really egregious happens, like a sexual assault.
11. When talking to your employees, and/or during your sexual harassment trainings, encourage them to stand up for (and to) each other. Kindness matters. Victims often feel alone and isolated. Standing by and laughing uncomfortably at a really rude, sexist joke (likely because you do not know what else to do) can make it appear as if you condone, or even agree with, the conduct. Instead, say, “That’s not funny.” Or, if you do not feel comfortable confronting the harasser in the moment, get the victim out of the situation by making up an excuse like, “Hey we need you in the conference room for our 11 meeting, and I have a few questions for you about that before everyone else gets there.” Also, some of your employees are in a position to talk to their friends about the way their friends talk about women in the workplace. Encourage employees to go to their friends and say, “Hey, did you see how uncomfortable she looked when you said that?” If you’re the buddy who someone approaches, be open to what they are saying, and try not to get defensive. This is nothing personal. Your friend cares about you, and wants to see you succeed. You may not think what you said was offensive, and in a different context, it may not have been. But, at work, you interact with a lot of different people, with a lot of different perspectives, varied backgrounds and sensibilities. Be aware of how other people feel. Watch social cues.