In recent years, the familiar seasonal duet “Baby Its Cold Outside” has come under fire as attitudes toward appropriate interactions between men and women have changed. Originally intended as a song of “flirty” banter, it reads more “creepy”, with lines like “I ought to say no, no, no sir (Mind if I move in closer); At least I’m gonna say that I tried (What the sense of hurtin’ my pride).” In the year of “me too” and revelations across all business sectors of continuing sexual harassment at the highest levels of corporations, the question now needs to be asked, “what kind of training is your company doing, is it even close to adequate, and when you have problems, what corrective actions are you taking”? In other words, do you “walk the walk” or just “talk the talk.” If you are not putting the heat on people who act inappropriately, and that may often be termination or serious negative adverse employment consequences, then your policies are nothing more than cold coals.
For years companies have been conducting training, even using outside trainers and role playing, but clearly it has not been adequate. Why is it inadequate? Is it because the trainers are deficient or is it because the corporation is not really committed to rooting out sexual harassment? And it is not just sexual harassment, it is harassment or bullying of any kind. While bullying is not legally prohibited, it is against almost all corporation’s cultural codes of conduct. And of course, it is usually counterproductive to a corporation’s success. So what needs to change?
First, you need a serious commitment by the highest levels. That includes the Board of Directors, if it is a corporation that has an active Board. That Board should have a personnel committee that is actively involved in reviewing and being concerned about the actions of senior management. Not only is this good policy, it is of the fiduciary requirements under which all Board members must operate. The world is changing and Board of Director members are now being sued for failure to fulfill their fiduciary duty of overseeing the legal obligations of senior management.
The take aways are:
- Understand your legal obligations as a Board member or senior executive of a corporation to not only have appropriate policies in place, but to enforce them.
- Make sure you have fiduciary liability insurance that covers breaches by senior corporate officers and Board members who have fiduciary obligation to enforce laws against sexual harassment.
- When there is improper conduct found to have occurred, act swiftly, decisively, and thoroughly to not only address the specific problem but to address the root causes of the problem.
- If there is not a genuine commitment by the most senior executive to prohibit sexual harassment, all the policies and all the training will simply be a like light snowfall, easily blown away by the first wind of confrontation with a high performer.
- Do not believe you can just buy your way out of a problem with a quick severance agreement and payment to complaining employee. If there is one occurrence with a person and that person is not confronted, there are likely to be subsequent occurrences. There is no one too important or too powerful not to be thrown out in the cold if that is the warranted action. It will not be warm and friendly inside if you have the same errant employee causing further problems.
- Getting your house in order is a year round effort, not just at yule time.
For more questions or concerns as to your Company’s obligations related to sexual harassment training, policies, and posting requirements, contact a member of Verrill Dana’s Labor and Employment Group.