Employment Law

Preventing Sexual Harassment Before the Storm

    “Sexual harassment”1 is not a new legal concept – it has been a violation of the law for over 35 years. What is shocking is that so much of what is now coming to light is being treated by the media (and the companies on which they are reporting) as though it is a sudden new phenomenon.  

    Major companies are being forced into knee-jerk reactions involving immediate termination of accused employees and then suffering the subsequent financial and reputational fallout. Why, after all this time, have companies been allowing sexual harassment to occur in their organizations without taking preventive action long before they end up becoming another #MeToo scandal, when it is all so avoidable? 

    Here are some tips to avoid the situation:


    Make the policy work.  Initially, a company needs to establish a policy that implements a harassment prevention protocol and then take the necessary steps to make it work. It is those last words, “to make it work” that are so critical and so often not practiced by companies. The policy should be firm and clear that harassment, sexual or otherwise, will NOT be tolerated, and the company must show by its actions that it means it. Employees should be required to sign the policy, and to acknowledge that they have read and understand it. The companies currently appearing in the media very likely have adequate non-harassment policies, but a policy is useless if it has no credibility with the employee population.  

    Companies need individuals to come forward. Encourage internal complaints about policy violations through employee hotlines and have multiple resources an employee may use to bring the situation forward, including individual(s) within HR or Compliance specifically identified for handling harassment complaints. 


    Institute recurrent thought-provoking training. Training, in tandem with effective anti-harassment rules distributed broadly and regularly emphasize appropriate standards to employees. Let’s face it—it’s an interesting topic – so effort should be made to provide engaging training, not just a boring presentation that employees use to catch up on their texting. Make it come alive! Thought should be given to having different types of education, utilizing such tools as executive led training sessions, video clips, and even mini mock jury trials. While e-learning is also a helpful tool, it is more effective in conjunction with face-to-face or webinar programs.


    Conduct a thorough investigation. Have strong written procedures for handling harassment allegations. Supervisors and managers frequently either ignore inappropriate conduct they see or hear, or do not take strong enough action early on. A company is required to take prompt action to remedy the situation if it knew or should have known about the harassment, and it will likely be found to have violated the law, with all the financial, reputational and other implications from such a finding, if it fails to take action because a supervisor or other representative of the company ignored the harassment. 

    Investigations are extremely important. A company should investigate all harassment complaints, even if the complaining employee does not want an investigation. The investigation needs to be thorough—take the time and resources to speak to everyone in a department where an allegation has been made. An allegation against one coworker or supervisor may lead to several others who have engaged in similar conduct.

    Don’t leave loose ends – elicit all the details and do not accept information at face value: ask difficult follow-up questions and obtain documents where applicable. Have witnesses sign statements where possible. Even if a potential witness states that he or she does not know anything regarding the subject matter of the investigation, get a signed witness statement to that effect. 

    Avoid the tendency to credit supervisors over employees, or long–service employees rather than newer ones. On the flip side, the rights of the individual who has been accused of the harassment should also be protected. One on one situations are extremely sensitive and both individuals need to be treated fairly. Do not rush to judgment. 

    As recent negative publicity so aptly demonstrates, allegations against executives cannot be ignored, no matter the level or perceived corporate power of the accused individual. Again, a sensitive situation, but one which can be handled with respect and fairness to all parties, rather than in the eye of a media storm later, and make no mistake, it always comes out eventually. 


    Take action if harassment is found. If the investigation concludes that harassment or other inappropriate conduct has occurred, take prompt corrective action reasonably calculated to end the inappropriate conduct, whether it is a stern written final warning, (along with coaching, periodic 360-degree feedback or other tools to monitor the situation), a demotion or a termination.



    The Equal Employment Opportunity Commission defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.”​