The #MeToo movement has the attention of nearly every employer in the country. Those who haven't been paying attention should. The war against sexual harassment in the workplace has employers examining their own policies, revisiting trainings and making it clear that inappropriate behavior in the workplace will not be tolerated.
Employers may be well situated to deal with new claims, but what about old claims? Smooth waters sometimes hold dark secrets. Here is what employers should do when old sexual harassment claims rise to the surface:
1. Do not ignore it. Investigate it. Even if the prospect of uncovering the truth is remote, an employer has an obligation to take the claim seriously and investigate it.
2. Treat the claim like any other. Follow your anti-harassment policy.
3. Talk to the parties involved. Have the difficult conversations you need to have to make sure you have a thorough understanding of what happened.
4. Make the call. Evaluate the facts as you have them and make a judgment call about what should happen.
Employers need to evaluate how the parties acted in a situation. Even if a determination cannot be made as to whether an event was "consensual", an employer will need to evaluate the level of judgment that was exercised and what, if any action needs to be taken.
Employers have good reason to take old claims seriously. An employee has gotten away with inappropriate behavior in the past, is likely to have continued that behavior. There may be other victims too.
Businesses and employees who are grappling with how to address sex discrimination in the workplace should consult with a law firm with extensive experience handling these types of claims.