October 26, 2021

Volume XI, Number 299


October 26, 2021

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October 25, 2021

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Me Too, But Now What? What Board Members Need to Know About Workplace Sexual Harassment

Allegations of workplace sexual harassment and assault have recently made headlines from Silicon Valley to Hollywood and have brought down the careers of numerous high-profile executives. Partially a response to the uptick in reports and partially a catalyst for new complaints, the “Me Too” hashtag prompted thousands of women and men to take to social media and share stories of sexual harassment and assault.

Now, in boardrooms from coast to coast, directors and trustees are grappling with how to respond. This primer discusses the impact that sexual harassment and assault allegations can have on companies and identifies steps that a Board member can take to both respond to allegations and avoid future claims. While this primer focuses on sexual harassment and assault, it is important to note that applicable law and Human Resources policies cover other forms of harassment as well.

Why Sexual Harassment and Assault Allegations Should Matter to the Board

If there is a lesson from the recent wave of high-profile claims it is that sexual harassment and assault allegations are bad for a company’s bottom line, reputation and corporate culture.

  • Above all else, sexual harassment and assault harms victims, and should not be tolerated by any entity that claims to value its individual employees and staff members.

  • Litigating or settling claims can cost millions of dollars, both in terms of defense costs and the costs of settlement or judgments.

  • Boards of Directors of public companies have obligations to disclose harassment claims to shareholders in certain cases. Such disclosures can negatively affect stock price and leave the company vulnerable to shareholder lawsuits. One company’s multiple sexual harassment settlements recently prompted an extensive federal investigation into whether it properly disclosed those settlements to shareholders.

  • Even in closely-held companies or non-profit organizations, high-profile sexual harassment allegations can result in negative media coverage and long-standing reputational damage, which in turn impacts fundraising efforts and recruitment and retention of talented employees, and leads to negative customer or client sentiment.

  • Sexual harassment investigations may result in terminations or resignations. If they involve senior executives, such departures can lead to major organizational shifts and detract from an organization’s long-term growth goals.

What the Board Needs to Know – Questions to Ask Management

Directors should educate themselves on how their companies currently handle sexual harassment claims and when and how the Board is informed about complaints.

  • Ask the Human Resources, Compliance or Operations team for copies of your organization’s sexual harassment policies and investigation procedures.

    • Review them at your next Board meeting and confirm that the Board knows its role in handling sexual harassment or assault allegations. For example, many company policies allow employees to report sexual harassment to the Board, particularly if the alleged harasser is at the most senior level within the company.

    • Ensure that management is familiar with its role in reporting and investigating harassment claims and that the company is following its own policies and procedures.

  • Ask your Legal and/or Finance team “who, what, where, when and how” with respect to the company’s policies and procedures for reporting sexual harassment claims to the Board.

    • Review who at the company is responsible for reporting claims and at what point the claims should be raised to the Board. Not every internal complaint will need to be reported to the Board depending on the size of the company and the nature of the complaint.

    • Confirm what factors the company is using in determining whether a claim should be reported to the Board, such as monetary thresholds or whether claims are only reported after litigation has been initiated.

    • Determine whether claims are identified to the entire Board or a committee thereof. If it is not clear, implement a plan for who on the Board will receive notice of such complaints.

    • Review how claims are tracked and valued in terms of financial risk to the company.

    • For public companies, review with your Legal team when claims must be disclosed to shareholders and how much information should be shared.

    • Be aware of aware of attorney-client privilege. Ensure that in-house or outside counsel are involved in the reporting process to maintain privilege as necessary.

  • Make sure that the Board has access to information about prior complaints and outcomes, which will help reduce the likelihood that a pattern of complaints goes unnoticed. Remember, there can be consequences for improper behavior even if it does not amount to illegal harassment or rises to the level of violating company policy, particularly when there is a pattern of improper behavior.

How the Board Should Manage Internal Harassment or Assault Complaints

The Board may learn of a sexual harassment or assault complaint from any number of channels, including a formal report from the company, a direct complaint from an employee to a Board member, or a blog or social media post. However it is notified, once the Board learns of such a complaint, it should take immediate steps to ensure that the company properly addresses the complaint.

  • Create a focused response team with representation from Human Resources, Legal, Public Relations and Compliance that will manage the company’s approach to a sexual harassment or assault complaint on multiple fronts.

  • Ensure that the company completes a full investigation of the allegations, which may include interviews with relevant witnesses and a review of relevant documents.

  • Employees (and judges and juries) want to see companies move quickly and decisively to review complaints and determine next steps.

    • Consider enlisting outside counsel to conduct your investigation, especially those involving senior management, in order to (1) maintain attorney-client privilege (to the extent possible); (2) ensure an objective third-party reviews the facts; (3) assist you in determining appropriate remedial actions, if necessary; and (4) keep the investigation moving forward on a timely basis.

    • If the complaint involves senior executives, and depending on the size of the company, ensure that the Board reviews the findings of the investigation and is involved in determining appropriate next steps.

    • If the complaint involves allegations of sexual assault, discuss with the complainant whether and how to alert the proper authorities.

  • Manage the message, particularly for high-profile harassment claims.

    • Consider a plan for handling media inquiries and work with outside public relations or other parties if necessary to minimize any reputational damage.

    • Ensure that you have outside public relations professionals identified in advance should the need arise.

  • Be mindful of retaliation and ensure that managers work with your Legal team in taking any employment actions involving the complaining party or any participants in the investigation.

How the Board Can Be Proactive in Avoiding Claims and Mitigating Future Risks

The Board can play an important role in setting the tone for a harassment-free workplace.

  • Maintain a 21st century sexual harassment policy.

    • Revise your policies and procedures if they are outdated or generic.

    • Review your technology policies to ensure that the company’s non-harassment policies extend to use of its technology and that the company has a right, but not the obligation, to review and access any messages or information transmitted on company systems.

  • Consider non-harassment training, as well as diversity and inclusion training for the Board, senior management and/or all employees.

    • These trainings send a message that the company is committed to maintaining a harassment-free workplace.

    • Outside counsel can tailor trainings to these various groups of employees.

  • Discuss the merits and potential drawbacks of additional reporting mechanisms, such as an anonymous hotline or an ombudsperson, with your Legal team.

  • Review the “Cause” provisions and indemnification requirements in executive and other employment agreements. On a go-forward basis, ensure that violation of sexual harassment policies constitutes a “for Cause” termination and consider requiring executives to indemnify the company if there are proven allegations of sexual harassment or assault.

    • Many companies still have to pay out huge severance packages to C-suite managers who were accused of or even admitted to harassment.

    • Review equity, options, bonus and other incentive compensation plans along the same lines.

© 2021 Foley & Lardner LLPNational Law Review, Volume VII, Number 313

About this Author

Jillian Collins, Foley Lardner Law Firm, Litigation Attorney

Jill Collins is an associate and litigation lawyer with Foley & Lardner LLP. Ms. Collins focuses her practice on counseling employers and litigating employment disputes on a broad range of labor and employment issues under federal and state law, including wage and hour compliance, non-competition and non-solicitation agreements, discrimination and sexual harassment complaints, medical leaves and disability accommodations, trade secret protection, and workplace health and safety.

With a presence in both the Washington, D.C. and Boston offices...

Larry S. Perlman, Senior Counsel, Personnel Matters Litigator, Foley Lardner
Senior Counsel

Larry S. Perlman is a senior counsel and litigation lawyer with Foley & Lardner LLP. Dr. Perlman advises clients on a wide array of personnel-related matters involving compliance with federal and state labor and employment laws. Dr. Perlman's practice also involves assisting clients with a variety of day-to-day human resource issues, such as employee discipline, employee leave, wage and hour questions, and disability accommodation. He is a member of the Labor & Employment Practice and the Automotive and Health Care Industry Teams.