The daily work of retailers typically seems a world apart from the goings-on in the entertainment industry or government, but #MeToo movement reverberations have been felt well beyond Hollywood and Washington DC.
As victims find their voices, behavior that may have remained buried in the past is now more likely to be the subject of complaints and forced into the light.
Are companies ready? Not according to their lawyers.
In a February 2018 poll, 46 percent of outside counsel surveyed said employers aren’t taking workplace sexual harassment training, prevention, and response “seriously enough.”
“The #MeToo movement is an important wake-up call to corporate America,” said Stephen Hirschfeld, CEO and founder of the Employment Law Alliance, which conducted the survey of 382 attorneys. “Company directors and executives need to understand that this isn’t a fad.”
Retail companies face greater risk than most firms do. In an October 2017 study by Rand Corporation, one in five workers said they face a hostile or threatening environment at work, which can include sexual harassment and bullying. And retail workers and other workers who have to face customers endure a disproportionate share of the abuse, according to the survey.
In a highly publicized environment, as today’s world surely is, sexual harassment carries additional reputational risk for retailers. Additionally, the threat of legal action is ever present.
In March 2018, for example, a New Jersey federal judge rejected a motion by a national auto parts retailer to dismiss a worker’s sexual harassment suit. The judge ruled that the statute of limitations’ clock started to tick when the worker received a right-to-sue letter from the EEOC, and not when the violations occurred. The retail worker is alleging she was subjected to sexual harassment at three different locations, as she was moved from store to store following complaints of harassment. The alleged harassment included unwanted sexual advancements and a coworker telling customers she was a prostitute.
Overall, sex discrimination, which includes allegations of sexual harassment, is the third leading cause of discrimination claims, accounting for roughly 30 percent of claims, according to EEOC data.
Smart Investigation Practices When It Comes to Sexual Harassment in Retail
The climate surrounding sexual harassment has employers on edge, according to their lawyers. More than 70 percent of outside counsel report that their clients are worried about a “rush to judgment” when harassment complaints are made. Additionally, 51 percent of company leaders feel some measure of pressure to publicize results and disciplinary actions following a misconduct investigation, according to the survey of outside counsel.
Clearly, the stakes are high—and perhaps higher than ever given today’s environment—for getting a sexual harassment investigation right. So how can a retailer reduce the likelihood that employees will criticize the sufficiency of an investigation?
Not every employee allegation of sexual harassment or misconduct is legitimate. Some complaints are proved to be unsubstantiated and may be made in an effort to avoid disciplinary action, or out of personal animus. Even when legitimate, an employee who alleges harassment may not be satisfied with the manner in which an investigation is conducted and he or she may dispute the outcome. In short, there are plenty of reasons why an organization’s investigation process may be to be called into question—or be subject to lawsuit.
One reason investigations shouldn’t draw fire, however, is because of a lack of clarity and communication with the complainant. Anxiety typically accompanies complaints of sexual misconduct, and in the absence of communication, complainants are likely to assume the worst about an investigation—even if the security organization is following investigation best practices.
Some causes for dispute are hard to avoid, but a failure to communicate with complainants is an unforced error.
From experts in security and human resource investigations, we examine four steps organizations should take to give stakeholders confidence that a company is committed to swiftly and effectively investigating allegations of sexual harassment in retail.
1. Clarify. One common source of complaints about an organization’s investigation protocol is ambiguity over who to report sexual misconduct complaints to, and who is in charge of investigating them.
When complainants are confused about how things are supposed to play out, it is easy for them to think they aren’t getting a fair shake. That is one reason why it is common for settlements in legal actions to demand defendants clarify processes for handling various types of sex discrimination.
Organizations may find it advantageous to write, disseminate, and educate its stakeholders on policies and procedures covering:
- the name or title, office address, email address, and telephone number of the individual(s) responsible for taking action, including clarification of any differences in the role of individuals with responsibility to take action on complaints;
- procedures for adequate, reliable, prompt, and impartial investigation of all complaints, including the equal opportunity for the parties to access, review, and present witnesses and other evidence;
- reasonable time frames for the major stages of the investigation; and
- a requirement for written notification to the parties of the outcome of the investigation, hearing, and appeal.
2. Act quickly. Make sure your company’s response to a sexual harassment or misconduct complaint is timely. It helps to show the employee that you take the matter seriously and instills confidence in your investigation process, say experts. It’s also important because court cases, particularly “hostile workplace” claims, suggest that companies often face legal woes because they go “on hold” as they wait for results from an investigation.
Supervisors and managers must know they need to respond fast—within 48 hours of receiving a complaint. If they don’t, a company may open itself up to charges of negligence for leaving an employee exposed to the harassment. Failing to act quickly also makes it appear that your company is trying to discourage complaints. It’s important to notify the complainant of his or her options to avoid contact with the alleged perpetrator to protect complaining parties during investigations.
3. Act consistently. Investigations against high-level managers should follow the same process as one against a store associate. If an employee complaining of sexual harassment believes they’ve seen inconsistency in enforcement in the past, they are more likely to raise complaints about the handling of their case.
4. Confirm accuracy. Complaints lodged against investigations are less likely when employees have confidence that investigators are on the same page as them regarding what they said took place. So, following the taking of a complaint, investigators should get the employee to confirm the accuracy of reports. Go over the complaint with him or her and ask if the report leaves anything out. Document the employee’s agreement with the version of events as documented in the report. Remind the employee that he or she should report any further incidents and document that the employee received this reminder.
This post was originally published in 2018 and was updated April 26, 2019.