Viewpoint: Reaction to Sexual Harassment Claims Must Be 'Prompt and Proportionate'

​In the wake of the recent terminations of a number of high-profile media figures and others amid graphic and disturbing complaints of sexual harassment, people everywhere are asking what more can be done, and many are looking to HR to do it.

HR must play a key role. But it cannot do it alone. It needs the support of other business leaders. Every case must be taken seriously, and corrective action must be taken where there is sexually harassing conduct, even if it does not rise to the level of illegality.  

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Quiz: Is It Sexual Harassment?

Perhaps less talked about, but also important, is whether, in this current climate, HR may be tempted to rush to judgment in certain cases of alleged sexual harassment, in its efforts to juggle and swiftly respond to the competing demands of multiple interested parties (victim, accused, management, public). HR must resist this temptation.

By now, it (hopefully) goes without saying that when bad behavior occurs in the workplace, there must be consequences. The Equal Employment Opportunity Commission calls for "prompt and proportionate" corrective action where harassment is found to have occurred. But what does that really mean? And how can HR be appropriately responsive, yet not prematurely so, before all the pertinent facts have been gathered and reviewed?

For starters, every complaint of sexual harassment should be taken seriously. But an investigation—a prompt, objective and thorough one—is imperative. Some complaints are easily and quickly vetted; others less so. Maintaining communication with the complaining individual and other affected parties regarding the investigation status often goes a long way toward mitigating risk that anyone feels ignored. It serves no one well, however, for HR to make a quick determination at the expense of being thorough.

To be sure, HR personnel are no less human than anyone else. They can only promptly and proportionately address what they know about, and they can only act upon what they know if they have adequate support from leadership.  

That is why an organization's equal employment opportunity policy—which must include an effective complaint procedure for reporting harassment—is so critical. It must be more than mere lip service. Ideally, it should be a living, breathing document embodied within the company's core values and part and parcel of the corporate culture. Dusting it off once a year simply is not enough.  

The "me too" movement spawned by the panoply of recent high-profile cases of sexual harassment, we hope, means that greater numbers of women and men feel more comfortable raising concerns where they might not have previously. Nevertheless, an ongoing challenge faced by HR is creating an environment and a complaint procedure in which employees are not afraid to raise concerns—and, particularly, to immediately voice those concerns when they first arise. While by now it may sound cliché, this does, indeed, start from the top down. All the policies, initiatives and training in the world are immaterial if the organization's leaders have not embraced the same.  

A recent example of such efforts (but by no means a cure-all) is illustrated by Fidelity Investments CEO Abigail Johnson. In the aftermath of sexual harassment allegations that led to the departure of two high-profile fund managers at Fidelity, Johnson physically moved her office out of the executive suite to be in closer proximity to and keep an eye on the section of her workforce particularly affected by the allegations.

Of course, HR acquires knowledge not only through complaints and concerns specifically voiced to it, but also by proactively keeping an ear to the ground, including for rumors and murmurings of trouble. While rumors often are just that, they sometimes signify a disturbing reality, as we've seen all too often recently. It is important not to ignore them.  

To that end, HR (and others in management!) should not simply wait until a complaint comes through the door before taking action. They are better served by continuously remaining engaged with their workforce, understanding their organization's culture (including any unique microcultures), conducting routine checkups to gauge how things are going and what can be done better, and fostering an open-door policy that encourages candid communication. Such proactive efforts not only increase the likelihood that concerns will be intercepted before they snowball into something much larger and more difficult to remediate, but they also showcase HR's (and the organization's) respect and consideration for its employees, as well as its thoughtfulness in these matters—which is not only the right thing to do, but also good public relations!

These are not easy tasks, and in many ways, they are thankless ones. Many, if not most, employees will never see this crucial behind-the-scenes preventative work. Nor will they recognize the painstaking care that HR often takes to investigate employees' concerns and arrive at an appropriate outcome. This is a time when HR should be supported in these efforts, as its role is critical to stamping out workplace harassment for good.        

Joy Grese is special counsel at Duane Morris LLP in New York City. 

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