Successful Harassment Prevention Programs in the #MeToo Era

By Michael S. Cohen

Sep. 30, 2019

From the instant I first saw the hashtag #MeToo on Twitter, I had a sense that my professional life might get busy to a degree I had never experienced.

I am an employment lawyer who has spent the better part of the past decade building a practice, the centerpiece of which has been conducting human resources and employment law trainings for organizations of all kinds. The importance of harassment prevention was going to be at the forefront not only for HR professionals (a place it had existed for some time), but finally also for executives and directors.

For each city I have traveled to since 2018 — and by my count that is roughly 100 — my 11-year-old daughter has photoshopped a picture of me in my Philadelphia Eagles T-shirt next to something unique about city to which I’m traveling.

For Detroit, it was a picture of Eminem and me on 8 Mile Road. In Irvine, California, I stood with the cast of the television show “The OC.” And, of course when in Washington, D.C., it was “the other” Michael Cohen and me in front of the Jefferson Memorial, with the hashtag #ImNotThatMichaelCohen. In other words, while travel can be difficult, I’ve been trying to have some fun with all the time I spend on the road.

The purpose of all of these hours, days and weeks on the road has been and remains to be critically important. Since the beginning of 2018, I have conducted more than 350 harassment prevention trainings for organizations of all shapes and sizes.

In many senses, the experiences have differed and diverged greatly from each other. Of course a harassment prevention training for a National Hockey League team might feel different than one for a federal agency, Fortune 50 company, energy investment firm, regional law firm, startup or local nonprofit.

While the differences in experiences may be real and trainings must be modified in a way to be meaningful for the particular organization, the fact remains: There are certain goals that are absolutely necessary for a successful harassment prevention training in light of the current climate in the U.S. workplace. 

10 Goals for Harassment Prevention Trainings

1. To ensure that all employees feel safe at work.

2. To educate all employees about what is and is not appropriate workplace conduct. This absolutely increases employee respect and satisfaction, enhances efforts toward retention and recruitment and decreases the likelihood of claims.

3. To alert management that they must report to HR (or the appropriate person/body) all inappropriate behavior based on protected class, whether the behavior was reported to or observed by them (even in absence of a complaint).

4. To notify all employees about the organization’s internal complaint procedure and, accordingly, their different and ideally diverse points of contact for raising complaints of inappropriate workplace conduct.

5. To make employees more aware of, and sensitive to, the fact that other people inside the organization have perceptions far different from their own. This recognition is critical.

6. To educate management about the illegality of, and the very real business risks associated with, retaliation.

7. To ensure that all employees understand that certain explanations are not defenses to inappropriate workplace conduct (e.g., “I didn’t mean any harm by the statement,” “I was just kidding around,” “I didn’t mean for her/him to hear it,” “That’s just who she/he is and always has been,” etc.).

8. To let all employees know that “what happens in Vegas” (read: outside the office) never stays in Vegas. Inappropriate conduct outside the workplace unquestionably has the impact of affecting relationships inside work and therefore must be avoided. When it occurs it must be addressed immediately.

9. To notify all employees that the organization takes extremely seriously any form of inappropriate conduct, that the organization will investigate all such issues promptly and thoroughly and that when inappropriate conduct occurs potentially severe disciplinary action will be taken.

10. To ensure that managers fully appreciate their legal obligations with respect to inappropriate workplace conduct — what we call the five Rs of supervisory or managerial responsibility.

Refrain from inappropriate conduct, broadly defined.

Report to HR (or the designated member or department or committee of the organization) all complaints of harassment, discrimination, retaliation or inappropriate behavior based on protected class.

Respond proactively, even in the absence of a complaint.

Remedy any inappropriate conduct, making sure the remedy is focused on the wrongdoer as opposed to the complainant.

(Don’t) Retaliate.

As we all know, the #MeToo movement has created a great deal more awareness of workplace harassment generally and sexual harassment specifically. As an absolute direct result, organizations of all types throughout the country have implemented robust and meaningful training initiatives designed to ensure that their workplaces are safe and free from harassment, discrimination and retaliation.

The organizational desire to do right and the decision to train all employees is a critical part of the battle. But, that desire and decision are not enough. Demanding that the program put in place to prevent inappropriate workplace conduct is essential, and it is only this kind of training that will assist in creating and maintaining the workplace we all know is necessary.

Michael S. Cohen is a partner at Duane Morris LLP. He concentrates his practice in the areas of employment law training and counseling.

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