How to Brief the Board on Sexual Harassment

May 25, 2018

Contributor: Sarah Morris

The general counsel must reinforce the boards oversight role in sexual harassment issues.

The recent onslaught of high-profile sexual harassment cases, ranging from inappropriate conduct to sexual assault, has captured the attention of companies and executives across all industries. Every board is asking “Will this happen at our company?” and “What steps have we taken to prevent this form of misconduct?” The general counsel must be blunt:

  • Sexual harassment negatively impacts business and talent outcomes, such as engagement, job satisfaction, productivity, brand and reputation — and ultimately harms shareholder returns.
  • Methods in place to prevent and address sexual harassment may not be working.
  • The board must commit to its own oversight responsibilities.

Two actions to take immediately

The general counsel is likely to hear plenty of general questions about the state of the organization’s sexual harassment policies, but legal and compliance leaders can commit to some basic tactical steps to address two common pitfalls that companies encounter in practice.

  1. Review patterns of enforcement. It is common for companies to put anti-harassment policies in place, but then apply them inconsistently. Legal and compliance leaders must commit to examining past decisions made to promote, discipline and fire — and assess how evenly consequences have been applied across cases. The board must know if disciplinary actions have been inconsistently applied, particularly to top executives or top performers or under management that is no longer with the company, and demand that patterns of inconsistent enforcement be rectified.
  2. Keep claimants informed during investigations. Even if employees report misconduct, many companies keep them in the dark after their claims are made. Claimants then doubt their allegations are being taken seriously, which harms employees’ perceptions of the company and reduces the likelihood that they would report alleged misconduct in the future. Benchmarking by RiskClarityTM from CEB, now Gartner, shows employees who reported misconduct and felt their company did not take action have their perceptions of integrity decline by 29%. Perceived lack of organizational justice is one of the primary reasons employees don’t report misconduct. Legal and compliance leaders must commit to follow up with employees throughout the investigation process and inform them in broad terms of what action is being taken (without disclosing confidential details of the investigation). Without this visibility into the process, employees will lack faith in it.

Three questions your board should ask going forward

Tactical issues aside, the general counsel must also reaffirm to the board its own oversight role. To stay vigilant, the board can proactively raise certain questions of management in future meetings to keep harassment processes and practices current and show all stakeholders they take the issue seriously.

  1. What do our metrics tell us about sexual harassment? Are there repeat offenders, problematic departments or types of concerns that are arising more frequently?
  2. When was the last time we updated our policies, conducted training and performed scenario-based training, particularly targeted at senior managers?
  3. What steps have we taken to promote an inclusive, diverse and safe company culture? What is the current state of our corporate culture?

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