The #MeToo Movement: 3 Policies Employers Should (Re)-Consider

The #MeToo movement may have grown out of controversy involving high-profile Hollywood celebrities such as Bill Cosby and Harvey Weinstein, but its broadest impact may be on the business world. Employers, HR professionals, and lawyers have renewed efforts to encourage employees to report inappropriate behavior at all levels. This is morally right because no one is above the law and people are truly harmed by such inappropriate behavior. Recent events have shown that victims of sexual harassment often feel uncomfortable coming forward, especially when the offender is in a position of power. However, it is in no business's interest to permit reprehensible behavior that can destroy employee morale, subject the company to liability, and negatively impact the company's goodwill.

Since this movement began, HR professionals and lawyers have sought to tackle the issues raised by reviewing current policies and employee handbooks. In the wake of #MeToo, a number of issues in sexual harassment policies have received considerable attention. The following three policy issues should be carefully considered before implementation of revised sexual harassment policies:

Investigation of High-Ranking Officers or Management. Many victims still fear reporting high-profile, well known leaders in certain fields. Despite robust anti-retaliation provisions in Title VII and most employee handbooks, victims are often still afraid of what might happen to their careers if they report harassers, especially when the harasser has a lot of clout. For businesses, it can be tricky for HR to investigate the CEO of a company—can you really treat your own boss the same as the lowest-level employee at the company? Probably not. For this reason, it may be advisable to craft internal investigation policies that require HR to retain an outside investigator for any claims against management at a certain level. The size and nature of the business must often be considered before crafting such a policy.

Non-Fraternization Policies. These are policies that either prohibit romantic relationships in the workplace altogether, prohibit relationships between direct reports, or prohibit some combination of these relationships. Some policies permit such relationships but require some form of disclosure to the company with acknowledgement that the relationship is consensual—sometimes informally called "love contracts". Employers should be cautious about balancing between the obligation to prohibit sexual harassment and discrimination without also getting too deep into the personal lives of rank-and-file employees. What happens if the employer requires a love contract only to have one employee refuse to sign? Is the employer now on notice of an unwanted sexual advance? Policies such as this need to be well crafted to address the specific circumstances of each employer without overcomplicating the workplace or creating unintended consequences. In any event, sexual harassment policies must be enforced equally no matter what relationships may exist among employees.

Dress Code. Undoubtedly, dress code policies sometimes overlap with sexual harassment policies because a comment in the workplace about clothing may be perceived as an unwanted advance. Obviously, an employee should never be victimized based on what he or she wears, but common sense should rule when trying to address employee attire through company policy. One anecdote involved an employer who, over time, grew its dress code policy to a 10-page document of legalese. Upon reflection, the HR department drastically reformed the policy to the following two words: "Dress appropriately." Another business in a field that requires safety clothing for plant workers decided to require all employees—even office employees—to wear the uniform (partially to encourage safety regulation compliance). While a uniform may seem extreme, certain industries may achieve the added benefit of simplifying this issue for all while creating a culture of safety that permeates the company. No matter the field of business involved, each employer should design a simple, easy to follow dress code policy that matches the needs of the business. Necessarily, good judgment and common sense must be exercised by all. No matter what, sexual harassment policies must be enforced equally regardless of any dress code policy.

No one policy will be a magic pill to cure the ills of sexual harassment. However, this is a good time for employers to take a renewed look at their policies and consider related issues, including those listed above. If policies are well-crafted, well-enforced, and genuinely built into the culture of the company, employees should feel safe reporting misconduct to HR. Employers will benefit from taking a leading role in policing misconduct in their own workplace and championing victims' rights.