It’s been five months since the #MeToo movement burst onto the scene. Since then, the headlines have been dominated with accusations of grossly inappropriate behavior by prominent politicians, entertainers, business people, and others. So it’s somewhat surprising that, according to acting EEOC Commissioner Victoria Lipnic (as reported in Law360 (subscription required)), the number of sexual harassment claims being filed with her agency hasn’t changed. Why is that?

One reason may be that employers are being more proactive. Those of us who do harassment prevention training are certainly doing more of it than in prior years. So perhaps (he said, trying to sound optimistic) employers are putting more emphasis on preventing harassment and those efforts are paying off.

Another explanation may be that employers are settling pre-litigation to avoid the devastating publicity that can accompany these claims, particularly with higher-profile defendants.

Also, many of the accusations that figure so prominently in the media involve conduct that occurred many years ago. Employees generally have no more than a year to bring these claims. So conduct occurring before then, no matter how offensive, will not be legally actionable.

Finally, it may be that the claims are working their way through the system. Before filing a lawsuit or a charge with a government agency, plaintiffs’ lawyers may be interviewing witnesses and lining up support for their clients’ claims. That process takes time.

Whatever the reason, employers shouldn’t let their guards down. They should continue to ensure that their harassment policies are legally compliant, that they appropriately investigate complaints of bad behavior, and that their managers are trained about their obligations in providing a harassment-free workplace. While there has not been a big upsurge in harassment claims yet, it only takes one to devastate your company.

When an employer gets sued for sexual harassment, the focus is not on what the alleged harasser did. It’s on what the employer did to provide its employees a harassment-free work environment. This includes both steps taken before anyone complains and steps taken in response to the complaint. So if your goal is to prevent your company getting sued for harassment, there are 12 steps you can (and should) take now. In fact, California law requires these things be present in all harassment policies.

  1. List all the categories currently protected under the Fair Employment and Housing Act, i.e., race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military or veteran status.
  2. State that the policy prohibits harassment by co-workers, supervisors, managers, and third parties with whom the employee comes into contact. (That’s basically everyone, isn’t it?)
  3. Provide confidentiality, to the extent possible, for complaints.
  4. Promise timeliness. This is a point of emphasis. The regulations require “a timely response,” “timely investigations,” and “timely closures.”
  5. State that investigations will be impartial and conducted by qualified personnel.
  6. State that investigations will be documented and tracked for reasonable progress.
  7. Provide “appropriate options for remedial actions and resolutions.”
  8. Designate personnel to receive complaints, while stating that employees are not required to complain to their immediate supervisors.
  9. Instruct supervisors whom to direct complaints to. Don’t let them investigate on their own, unless they’re trained to do so.
  10. Indicate that the employer will conduct a fair, timely (there’s that word again!), and thorough investigation that provides all parties with appropriate due process and reaches a reasonable conclusion based on the evidence.
  11. Indicate that, if misconduct is found, the employer will take appropriate remedial measures.
  12. Prohibit retaliation.

Perhaps you’ve noticed that harassment claims have been in the news a lot lately. The first line of defense is having a compliant policy in place. Not allowing your employees to ever interact with customers, supervisors, vendors, or each other may also be effective, but that doesn’t seem to work for many businesses.