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SEXUAL HARASSMENT:
WHAT COMPLIANCE OFFICERS SHOULD DO
Richard P. Kusserow
(President of NHS and former Inspector General DHHS)
It is rare these days that one encounters an employer who does not have policies that ban sexual harassment in the workplace. Is this enough in light of the recent Supreme Court ruling that employers may be liable even if they are unaware of sexual misconduct in the workplace? The message appears to be clear. Employers must review and update their policies and reinforce procedures on this subject. However, even this may not be sufficient to meet the current challenge.
Hostile work environment cases are costing American businesses billions of dollars each year. Over the last several years there has been a continuous rise in the number of sexual harassment complaints filed with the Equal Employment Opportunity Commission. In 1991, the number was about 6,000 for the year. By 1997, the number had risen to over 16,000 per year. There have been very notable settlements in recent years amounting to millions of dollars. The Mitsubishi Motors settlement was $34 million. Last year, Astra USA paid $10 million and New Lieberbaum & Company settled at $1.8 million.
Although the primary responsibility for matters of this type rests with human resources management, there is also a significant role for the compliance program. The objectives of an effective compliance program encompass matters relating to sexual harassment. It is important that compliance officers work with human resource officers to reduce the risk and vulnerabilities that arise from a hostile work environment.
In any organization there are a number of compliance elements already in existence, though they may not be labeled as such. Human resource and risk management are clearly compliance-related activities. Many companies do not realize this and continue to layer compliance efforts, one on top of the other. This leads to inefficiency and in some cases dysfunction. It is important for the compliance officer to recognize that these activities are compliance-related and should be coordinated.
In making the case for compliance officer involvement, it is important to begin with reviewing the objectives of any compliance program. Our firm (Strategic Management Systems, Inc.) has been involved in development and implementation of compliance programs for over 600 companies and entities. This experience has taught us that the main objective of a compliance program is to reduce the opportunities for unwanted events that would give rise to a liability. A "run in" with the Department of Justice or another regulatory agency meets that definition. Litigation arising from allegations of sexual harassment also meets these criteria. In short, a comprehensive compliance program covers all applicable laws and regulations, including those that address sexual harassment, discrimination and hostile work environment.
BEST PRACTICES
By all accounts there are a number of best practices that companies may follow to reduce their risk and vulnerability to sexual harassment or other types of hostile work environment problems, including the following:
- Proper training of personnel and human resource management staff on how to investigate complaints fairly and confidentially. Parties outside the supervisory chain of either party should make these inquiries to the allegation or complaint.
- Exercise care in promoting people to the management ranks. Individuals technically competent in performing duties may lack the requisite people skills demanded of managers and supervisors.
- Supervisors should be trained on how to become alert to potential harassment problems. Training should assist them in being able to distinguish between consensual personal relationships and sexual harassment.
All of the foregoing are matters that fall squarely in the realm of human resource management. However, a number of other best practices overlap with compliance officers, including:
- Ensure that the policies and code of conduct of the organization establish a "zero-tolerance" for sexually offensive behavior with procedures that define how offenders will be disciplined. In many organizations the compliance code covers this same set of issues. It is recommended that the compliance code, standards of conduct, compliance policies, or whatever the terminology, spell out potential EEOC claims (i.e. discrimination policies). If there are separate references in the human resource policies and procedure manual, which relate to the compliance program, they should be cross-referenced to insure consistency.
- Employers must provide a proven, effective system for reporting complaints of sexual harassment when they arise. Compliance programs should operate an employee "hotline" that permits employees to anonymously report violations of law, regulation, company policies, compliance code or other suspected wrongdoing. This same hotline can be used to address this best practice. Allegations of this nature received on the hotline should be coordinated with human resource management. It is advisable to have operating protocols to ensure efficient coordination. For additional information regarding how this can be accomplished, we suggest you contact National Hotline Services toll-free at 1-877-267-1930.
- It is critical that employees be assured that complainants will not suffer retribution or retaliation for reporting perceived violations of policies or otherwise raising concerns about questionable behavior in the workforce. Under the United States Sentencing Guidelines for Organizations and various compliance guidance documents issued by the Office of Inspector General for DHHS, it is virtually mandatory that companies establish policies and procedures to ensure that complainants not undergo retribution or retaliation for raising concerns.
- An annual anonymous survey of employees morale and perceptions of the workplace can help identify weaknesses and emerging problems that employees may be reluctant to raise with supervisors. Many companies use surveys as a feedback mechanism for measuring and assessing the work environment for potential problems of hostile work environment, morale problems, etc. Compliance programs are also encouraged by the government to utilize such tools. The preferable tool would be one anchored in a national database that permits analyzing of the organization against the universe of companies. A best practice and more economical approach combines the surveys into a single culture survey that addresses both human resource and compliance issues. Our firm developed and has used the Employee Compliance Benchmark Survey" that is in turn anchored in a national database maintained at over a 250,000 survey population. It measures several dimensions of the work environment, including issues of human resource management, compliance, financial practices, job satisfaction, management practices and quality of service/product. More information on this tool can be obtained by calling Strategic Management Systems, Inc at 1-800-683-9601.
- Training programs should include issues related to sexual harassment. Every employee, from the CEO down, should be required to attend. Our firm includes this subject matter in the interactive training programs we develop with our clients. We encourage our clients to set aside a two-hour block of time for compliance training. We believe the best training involves a facilitator working with the class, beginning with a review of the policies, procedures and company code and ending with interactive training using scenarios as a lead to discussion on issues. We recommend that hostile work environment, discrimination, and sexual harassment issues are included in all compliance-training programs.
It is highly advisable to avoid dysfunction and encourage efficiency in dealing with compliance risks, regardless of their names. To do otherwise is wasteful, inefficient and unnecessarily costly. Sexual harassment is just one such area warranting close cooperation and coordination between the compliance officer and human resource management.
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