Five Things Organizations Still Get Wrong About Sexual Harassment

Even well-meaning organizations continue to botch their harassment training, investigation, and disciplining practices, leaving themselves vulnerable to both legal liability and loss of talent.

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Alice Mollon

Although the #MeToo movement shed light on the prevalence of sexual harassment in the workplace, employers have been slow to make any substantial changes to address the harassment epidemic. As a result, organizations often find themselves in indefensible positions when they are sued for sexual harassment.

The talent retention risks to organizations are significant on their own. Then there are the legal and financial risks. Good employees will not only leave bad organizations but also sometimes sue them. Despite the drop in the number of claims during the height of COVID-19 era, the U.S. Equal Employment Opportunity Commission (EEOC) reports that monetary benefits awarded to plaintiffs were nonetheless more than 30% higher in 2022 than they were at the start of the #MeToo movement in 2017. Final figures for 2023 are apt to be significantly higher, particularly given the historic $215 million awarded to plaintiffs in a settlement reached with Goldman Sachs in May 2023.

Companies need to tackle their exposure head-on. Much of an organization’s liability hinges on its overall climate with respect to sexual harassment. Although this may sound like a subjective assessment, harassment climates essentially boil down to three components: preventive measures, investigations of complaints, and penalties for harassers.

For more than 16 years, I have served as an expert witness in dozens of discrimination and harassment cases in the U.S. I have seen the actions and failures to act that allow harassment to fester and leave organizations vulnerable in the face of a lawsuit. While laws and norms regarding sexual harassment vary from country to country, certain employment practices are universally better than others. Based on my experience, here are five things even well-meaning organizations are still getting wrong about sexual harassment.

Offering training that is not apt to be effective. Training is one of the primary means of preventing sexual harassment. In the U.S., some states currently require all employers to provide sexual harassment prevention training, while others require only public employers to provide training, simply recommend that training be provided, or offer no guidance. But even before the #MeToo movement, a survey of human resources professionals found that 71% of their employers provided some sort of training.

In many cases that are litigated, the liability stems from the fact that the harassment is often an open secret that goes unreported or unaddressed.

However, in evaluating an organization’s harassment climate, a trained HR expert would likely explain to a judge or jury that simply looking for a yes-or-no answer regarding whether there had been any training would be insufficient; rather, they would testify regarding whether the training that had been provided was likely to be effective. Research suggests that training that is less than four hours, is not interactive, and is not done in person has zero effect. Similarly, harassment training that is a one-off event during onboarding is apt to be seen as futile. If your training falls into any of these categories, it is time to revise it.

Training for bystanders is central too. Because training is part of the preventive strategy to avoid a broader harassment climate, a primary goal of anti-harassment training should be to encourage people other than the victim or harasser to be part of the solution. In many cases that are litigated, the liability stems from the fact that the harassment is often an open secret that goes unreported or unaddressed. Indeed, in many cases, rather than reporting the harasser, people will warn new work group members to avoid being alone with that person. Given that employees are often (understandably) worried about speaking up against harassment — particularly when the harasser is in a position of power — organizations should include bystander intervention training aimed at encouraging people to voice concerns. Some organizations set up anonymous hotlines, but as a practical matter, they are rarely used, making it all the more important that bystanders learn how to effectively intervene.

Determining that a complaint doesn’t warrant an investigation. The importance of investigating every complaint, no matter how innocuous it might seem to the person receiving it, cannot be overstated. Often, there is a tendency to brush off complaints of behavior either by responding with “That’s just the way Tom is” or by making an assessment that a behavior is not sexual in nature — for example, calling a female coworker “a bitch.”

Harassment, though, is in the eye of the beholder, so if someone finds a behavior bothersome enough to report, HR has an obligation to investigate it. The correlation between sexual harassment and general mistreatment is well established in the academic literature and may affect how lawsuits play out, so relying on the harasser’s general incivility as a defense is not apt to be effective. For example, in Ravina v. Columbia University and Bekaert, where a junior faculty member claimed sexual harassment and retaliation by a tenured professor, the defendants attempted to make the case that because the senior faculty member was characteristically rude and hostile, the junior professor’s allegations of harassment were somehow less credible. The tenured faculty member and the university were found liable for retaliation, and the plaintiff, Enrichetta Ravina, was eventually awarded $750,000 in damages plus more than $1.5 million for lawyers’ fees and costs.

If someone finds a behavior bothersome enough to report, HR has an obligation to investigate it.

Complaints also go uninvestigated because a determination is made that certain behaviors are acceptable in a particular workplace. For example, after the Spanish women’s victory in the World Cup in August 2023, Royal Spanish Football Federation (RFEF) president Luis Rubiales planted a kiss on the lips of one of the match’s stars, midfielder Jenni Hermoso, in front of 1.5 billion TV viewers. After an eruption of criticism, Rubiales was pressed by the media to comment on the behavior. In his statement, he said that he had done nothing wrong. Rather, he stated that “within the RFEF bubble, no one gave it the slightest bit of importance.” But again, given that harassment is in the eye of the beholder and that Hermosa claimed the kiss was unwanted — she wrote on social media a few days later, “I felt vulnerable and a victim of an impulse-driven, sexist, out-of-place act without any consent on my part” — clearly the two had very different views of what was acceptable inside the RFEF bubble. Rubiales resigned following the incident; after a judge’s recent ruling that the kiss was nonconsensual, he now faces a criminal charge of sexual assault.

The mistreatment of coworkers or employees should always be addressed, regardless of whether it rises to the level of violating the company’s harassment policy, as doing so demonstrates a commitment to remediation. Further, for the minority of instances where a harasser genuinely may not realize they have overstepped a boundary, an investigation and a documented warning may serve to change their behavior.

Conducting inadequate investigations. The EEOC notes that effective investigations must meet the criteria of being prompt, thorough, and impartial. Investigative notes are almost always turned over during litigation, so it is in employers’ best interests to ensure that the investigator is impartial and trained in conducting investigations. But while internal investigations are typically conducted by individuals in the human resources department, academic programs in HR rarely, if ever, include investigations as part of the curriculum. It is therefore incumbent on employers to ensure that such training is provided to those tasked with conducting effective investigations.

The timeliness criterion is generally met by commencing an investigation within days of having received a complaint and concluding it within a few weeks. As the majority of internal investigations don’t require more than a handful of interviews, this is a reasonable time frame. Further, dragging out an investigation may mean that a victim is forced to continue working alongside the person who harassed them, which is undesirable, particularly in situations where the harassment was egregious (for example, sexual assault). While complainants typically cannot control the speed of an investigation, an unduly long process may factor into liability, as it signals that an organization did not take seriously its responsibility to provide a workplace free from harassment.

Thoroughness is more situation-specific. It includes gathering emails, text messages, voicemails, video, and any other evidence that may support the allegation, as well as interviewing all people who may have knowledge about the complaint and asking for them to provide their own account of what transpired. Having witnesses sign the notes taken during the interview is a good practice for ensuring that the investigator has adequately captured their accounts. On the other hand, having witnesses sign a pre-written statement — a rare but not unheard-of practice, in my experience — might signal to an HR expert that the investigation was a sham.

Treating each complaint in a vacuum. While conducting each individual investigation properly is important, organizations also need to ensure that there is a system for managing harassment complaints. Handling investigations is typically a task assigned to an employee, and, as with any task, employers should assess how well it is being carried out. At a minimum, a system should track when the complaint was made, the investigation start and end dates, the witnesses interviewed, and the final determination. This organizational process allows employers to monitor the timeliness with which investigations are handled and may provide insight into their thoroughness. For example, if investigators rarely interview witnesses outside of the complainant and alleged harasser, it may signal that they are not being sufficiently thorough. Likewise, if all or nearly all investigations result in a finding of “not substantiated,” this might signal that the investigator is not interested in the difficult work of dealing with a substantiated allegation of harassment.

Perhaps the most important reason to track harassment allegations and investigations is that it allows organizations to identify repeat offenders. Examining each complaint in a vacuum may overlook the fact that the same person has been accused by multiple individuals. If they are never disciplined, they are emboldened to engage in more egregious behavior. The EEOC urges investigators to weigh the relative credibility of each party’s side of the story, and, to the extent that prior unfounded allegations accumulate, these should factor into assessments of credibility in subsequent cases.

Not disciplining harassers. Because of the escalating nature of unchecked harassment, when lawsuits are prompted by more egregious harassment, courts will often consider an organization’s response (or lack thereof) to the less severe, earlier behaviors. For example, a $23 million settlement was approved against Charleston Area Medical Center in West Virginia, stemming from a gastroenterologist who sexually assaulted female patients. News sources noted that before the sexual assault was discovered, it was widely known that the doctor would routinely ask his (mostly female) staff members graphic questions about their sex lives and bodies. Failure to engage in any sort of disciplinary actions to address this harassment of internal staff members, despite widespread knowledge of such behavior, likely factored into the size of the award.

Despite the fact that a sound defense requires that the employer “exercised reasonable care to prevent and correct promptly any harassing behavior,” per EEOC guidance, researchers have been slow to study the factors that affect disciplinary decisions. However, research that my colleagues and I are currently working on suggests that individuals are less likely to mete out discipline when they espouse traditional beliefs about gender roles (such as “boys will be boys”), when the victim’s job is outside of professional gender norms (such as a female engineer or a male administrative assistant), and when the organization’s sexual harassment policy is less explicit.

While organizations may not always be able to prevent bad actors from engaging in sexual harassment, the foregoing examples suggest that they can mitigate their liability by demonstrating that they engaged in meaningful efforts to prevent and remediate it. A credible training program that encourages third parties to intervene is an important element of prevention. Likewise, a solid process for investigating complaints and looking for patterns, coupled with a uniformly applied disciplinary policy for violators, signals that the organization is serious about addressing harassment before it escalates. Beyond their value in reducing liability, these efforts may help organizations create an environment in which talented female colleagues want to work.


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Comment (1)
Stuart Roehrl
Important material, very good recommendations.  
Stuart Roehrl