Try Harassment Audits as a Change Agent

Allen Smith, J.D. By Allen Smith, J.D. October 11, 2018
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​Forward-thinking companies are looking at the #MeToo movement as a chance to improve their corporate culture. Harassment audits—a combination of culture surveys, identification of harassment risk factors and recommended changes—can help employers weed out inappropriate conduct.

And just in time: The Equal Employment Opportunity Commission (EEOC) has recovered $70 million in sexual-harassment litigation so far in 2018, compared to $47.5 million last year.

An "increased percentage of charges shows that employees are more emboldened in today's environment to report harassment, and employees are looking to the EEOC on a more frequent basis," said Barry Hartstein, an attorney with Littler in Chicago.

What Should You Ask in a Harassment Audit?

Harassment audits can take different forms. The best harassment audits analyze risk factors and survey the workforce, according to Jeanine Gozdecki, an attorney with Midwest-based Barnes & Thornburg. Consider looking for these risk factors outlined in the EEOC's 2016 harassment report:

  • Homogenous workforces.
  • Workplaces with significant power disparities.
  • Businesses where the work is monotonous.
  • Isolated workspaces.
  • Workplaces that tolerate alcohol consumption.
  • Decentralized workplaces.

Barbara Nett, owner and principal consultant with Savina Consulting in Denver, said the audits that her firm conducts consist of:

  • Interviews with HR professionals to review current policies, existing training and any analytics on compliance.
  • Interviews with executives to understand the culture of the organization and assess any past or present issues with harassment that are known to management.
  • An online survey of employees soliciting anonymous feedback about the organizational culture, knowledge of harassing behaviors and awareness of organizational policies related to reporting harassment.
  • Feedback on what the organization is doing well and areas where policy or cultural changes may be needed.
  • Recommendations on creating defensible anti-harassment policies, investigation procedures and accountabilities.

Next, survey your workforce. Gozdecki recommended using the Harvard Business Review survey, which is a workplace climate survey that incorporates some of the recommendations the EEOC has made for surveys on harassment. The key is to keep the survey "short [and] simple and to describe conduct but not label it as harassment," she said. Labeling conduct as harassment may bring about a litigious environment and create evidence of harassment that may arise in subsequent litigation.

Training vs. Accountability

Nett added that her organization examines how long it takes to investigate and close a complaint and whether front-line managers are held accountable for responding to incidents of harassment.

"Most organizations are examining their policies and reassessing their sexual-harassment training. That is all well and good but only part of the issue," she said. "We don't view sexual harassment as a training issue. We view it as one of power imbalance, culture and lack of accountability. Training is important, but it's only one piece of the pie and likely not the most critical. Sexual-harassment training has been somewhat commonplace for 30 years or more, and the issues have persisted, so training clearly isn't the only answer."

Nett said that a harassment audit also should examine harassment on the basis of race, ethnicity, national origin, age, religion, disability, sexual orientation and gender identity, in addition to sex. "Although sexual harassment is getting the bulk of the media attention of late following the #MeToo movement, employers must protect against all forms of prohibited harassment," she observed.

Amy Polefrone, SHRM-SCP, president and CEO of HR Strategy Group in Ellicott City, Md., noted that harassment audits might identify policy or training gaps that need to be fixed. For example, policies might not explain how claims will be handled, and training might be focused only on compliance, she noted. While compliance is important, "it is more effective to show how harassment detracts from the company's core values," she said.

Consider Using an Independent Auditor

An independent, third-party audit can help encourage open communication by executives and others, said Cynthia Bremer, an attorney with Ogletree Deakins in Minneapolis, ensuring objectivity and avoiding conflicts of interest on such key topics as:

  • Executives' and other employees' understanding of the company's policies on harassment and retaliation.
  • The company's training practices.
  • The available company resources to address any issues raised under the policies.
  • Examples of employees' commitment to the company's anti-harassment culture and code of conduct.
  • Descriptions of employees' personal philosophy on these topics, especially to the extent it differs from that of the company.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

What Shouldn't You Ask?

Employers need to be careful if they decide to conduct harassment audits, cautioned Katherin Nukk-Freeman, co-founder of SHIFT HR Compliance Training and an attorney with Nukk-Freeman & Cerra in Chatham, N.J.

"They have to be committed to addressing and resolving any issues they find," she said. "Uncovering harassment issues without resolving them would increase the organization's exposure and liability for any subsequent harassment claims, because the audit would be a piece of evidence documenting the employer's knowledge of such issues."

She added that someone without extensive employment litigation experience might ask the following dangerous questions of employees during an audit: "Have you ever experienced sexually harassing conduct here at the company? If so, how often? Provide details." She noted, "If multiple employees answer the questions, the cumulative response could certainly be evidence supporting a pervasive environment of sexual harassment."

Nukk-Freeman recommended that employers start with anti-harassment training, and then conduct harassment audits with the advice of employment counsel and be prepared to immediately act upon problems that are discovered.

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