Rethinking the Harassment Compliance Model
Allegations of sexual harassment and assault have hit the news almost daily over the last several weeks, with fingers pointing at Hollywood “A-Listers,” corporate executives, politicians, journalists, etc., etc., etc.
Many of the allegations have been raised years, or even decades, after the harassment allegedly occurred. Why have the victims, both men and women, waited so long to come forward? Many reportedly were afraid that coming forward would be career-ending. By remaining silent, those victims internalized the harm, and, in some cases, continued to endure further harassment by the same perpetrators. Their silence also may have enabled the perpetrators to harass other victims.
The Fear of Retaliation
In the “real world,” beyond Hollywood and Capitol Hill, how can companies eliminate the fear of retaliation that deters victims of harassment from coming forward immediately? Perhaps it's time to reexamine the complaint mechanism in the typical anti-harassment policy found in employee handbooks.
Most complaint mechanisms are multi-tiered, meaning that the complaining party is told to voice concerns to his/her immediate supervisor, human resources (particularly if the supervisor is the alleged perpetrator), or another management official. Many handbooks also include “open door” policies that invite employees to stop by an executive's office at any time to talk about anything (and that anything could include allegations of harassment).
The primary goal of the typical complaint mechanism is to put the company on notice of the alleged harassment, give human resources a chance to investigate and (if necessary) take prompt remedial action, and create a working environment free of harassment for all employees.
Implementation of an anti-harassment policy with a complaint mechanism also may help employers establish an affirmative defense to liability in litigation (known as the “Faragher/Ellerth affirmative defense”) to some types of harassment claims, particularly if the employee did not follow the written complaint procedure.
Is Anonymous Reporting the Answer?
The typical anti-harassment policy may not remove the fear of retaliation, even if the policy expressly prohibits retaliation (as most do). Perhaps the fear of retaliation can be eliminated by incorporating into the complaint procedure an option for anonymous reporting. Of course, some employers’ policies already provide for anonymous reporting, but it's far from universal.
Anonymous reporting is not a perfect solution. For one thing, without knowing the identity of the complaining party, it's much more difficult for human resources to investigate a complaint, particularly if the anonymous complaint lacks sufficient (or any) detail as to what happened, when it happened and who observed it happening. And, if HR can't complete a thorough investigation, which normally would include interviewing the complaining party, then HR may not be able to reach a reasoned conclusion, take remedial action (if necessary) against the perpetrator, and prevent future occurrences.
Anonymous reporting may also create proof problems when it comes to establishing the Faragher/Ellerth affirmative defense, which often turns on proving that the plaintiff failed to complain about the alleged harassment. If a complaint is anonymous, the employer may never know the source of the complaint.
Necessity Is the Mother of Invention
Despite the flaws inherent in anonymous reporting, some believe that an anonymous complaint is better than no complaint at all. That belief has given birth to a soon-to-be-launched website called AllVoices. Created by Claire Schmidt, a former technology executive at 20th Century Fox, AllVoices will provide an avenue for employees to bypass human resources and anonymously report harassment and discrimination directly to corporate CEOs and boards of directors.
AllVoices will aggregate reports of harassment and discrimination by company, deliver the complaints to each company without any personally identifiable information, and advise the complaining party when the target company has received the report and whether the company has taken action. Schmidt describes AllVoices as “a safe place for people to report what they’ve experienced without having to come forward publicly, risk their jobs or reputations, or fear retaliation.”
Only time will tell whether AllVoices succeeds in achieving its goals, but, in the interim, it would be prudent for all employers to review their anti-harassment and anti-discrimination policies to ensure that employees are, to the extent possible, undeterred in bringing complaints forward immediately.