Workplace Investigations

Process and enforcement in the age of #MeToo

The #MeToo movement was founded more than a decade ago, as a vehicle against sexual abuse and harassment. Despite its longevity, it really only entered the public consciousness in October 2017, in the aftermath of high profile sexual misconduct allegations involving Hollywood.

It was adopted as a social media hashtag by people when discussing the scandal, that involved film producer Harvey Weinstein, but has since been used much more widely to highlight the prevalence of sexual harassment in broader society.

The ‘Age of #MeToo’, as some commentators have dubbed it, has increased the general understanding of what constitutes sexual harassment and put more emphasis on its eradication. The movement has precipitated new legislation in advanced, forward-thinking countries, designed to make sexual harassment unacceptable.

In the US, the Empower Act – “Ending the Monopoly of Power Over Workplace Harassment through Education and Reporting” – was introduced in Congress in 2018. The overall aim of the legislation is to protect employees from workplace harassment and make it less dangerous for those affected to come forward. Provisions of the legislation include requiring confidential tip lines for anonymous reporting of workplace harassment, banning non-disparagement and non-disclosure agreements in settlements, requiring that public companies disclose settlements; and reforming tax law to eliminate penalties against survivors of harassment.

In the UK, a 2018 report from the Equality and Human Rights Commission, surveyed 1,000 individuals and employers about sexual harassment in the workplace. It asked employers to provide evidence about what safeguards they have in place to prevent sexual harassment, what steps they have taken to ensure that all employees are able to report instances of harassment and how they plan to prevent harassment in the future. The Commission used this data to issue guidelines to employers.

Initiatives like these have increased the pressure on employers to put in place comprehensive, written, anti-harassment policies. These should include clear guidelines for reporting, recording and investigating complaints internally and, where necessary, via third-parties.

Companies that fail to do this, risk, at worst, contravening the law of the jurisdiction they are operating in and, at best, some seriously bad PR.

Investigating complaints of sexual harassment is fraught with difficulty and requires an employer to uphold the rights of the accused, as well as the accuser. The potential damage such tensions can cause within a workplace, mean investigations should be prompt, quick and thorough, adhering tightly to the procedures laid down.

The requirement for clear process is also apparent in enforcement of a harassment claim, meaning that evidence gathered and arguments made must be comprehensive, in order to avoid a counterclaim for unfair dismissal by the affected employee.

The following feature assesses complaints procedures involving sexual harassment in the workplace, best practice investigatory techniques and available enforcement actions; all in the context of #MeToo. Eight employment law experts from different jurisdictions around the world (including Dr. Sebastian Schröder) share their unique view of developments. Together they offer a comprehensive view on global sexual harassment procedure.

Read the more by downloading the pdf: https://aquan.com/wp-content/uploads/2019/05/IR-Global-Employment-Virtual-Series-Workplace-Investigations.pdf