Caron Gosling is counsel and employment law specialist at international law firm Pillsbury Winthrop Shaw Pittman.

Given the current proliferation of allegations, one might be forgiven for thinking that the law prohibiting sexual harassment is of relatively recent origin. This is far from the truth.  Sexual harassment within the workplace is not a new issue, and employees have had legal protection from harassment for many years. Despite this, it is clear that recipients of harassment have, in the past, been reluctant to complain. But this has changed:  recipients are now less likely to suffer in silence, and, in social media, have access to channels of communication that are potentially far-reaching and uncensored. How should employers deal with allegations made in the public arena and what can be done to manage this risk?

What is sexual harassment?

Sexual harassment is unwanted sexual conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. It is inextricably linked to relationships in which there is an imbalance of power (of which many exist in the context of the workplace). At the heart of this is the effect the behaviour has on the recipient – it is no defence to say that the perpetrator meant no harm.

Why the recent increase in sexual harassment allegations?

There has been a noticeable change in society’s attitude towards harassment: it is increasingly less tolerated. This is a good thing, and no justification for previous transgressions (as has been the defence of some of those accused). Whether this change in attitude is, of itself, the trigger for the current crop of allegations is not clear-cut. Arguably it is both the root cause of the change, whilst being further enhanced by the additional publicity generated – a kind of ‘virtuous’ circle.

What is also new is the spread of social media, which, as the #MeToo campaign demonstrates, can publicise sexual harassment allegations as much, if not more, than traditional mainstream media. Recipients of sexual harassment will now be well aware of their rights in the workplace and, in addition, are likely to feel further empowered to stand up and make their voices heard without fear of ridicule or contempt. Arguably, it has never been easier to do so. Anyone with a sexual harassment complaint can now raise this in a public forum without having to follow any workplace procedures, or satisfy the typical journalistic integrity of the mainstream media. The floodgates are not only open, they have been washed away.

Managing the crisis

Where society leads, workplaces follow, and employers should be ready for allegations of sexual harassment concerning their employees. These allegations may arise internally within the confines (and privacy) of the operation of internal workplace policies, but could just as easily be raised in a public forum. A prudent employer will already have procedures in place to deal with an internal complaint (and if not, then recent events should surely show that this is now essential). But dealing with these issues in the public glare gives rise to new concerns. Now is the time to take stock to ensure that there is an appropriate crisis management plan in place to deal with a public sexual harassment claim against a current or former employee.

Review your policies: Are your internal workplace policies on anti-harassment, equal opportunities, whistleblowing and social media policies up-to-date, clear and effective?   Specifically, in relation to dealing with the media or social media, do employees have clear guidelines as to what is appropriate and what is not in relation to making allegations that identify colleagues or former colleagues? Where possible, employees should be encouraged to raise complaints through the anti-harassment procedure, rather than posting on social media.

Implement and enforce your policies: A beautifully crafted anti-harassment or social media policy is not enough of itself – these need to be enforced effectively. No employee is too senior, or too important, to be above these policies.

Consider training employees: Employees have both rights and obligations in this respect and should understand what this means in practical terms.

Have you got a diversity/anti-harassment champion? This is someone who can serve as the first port of call if any employee has a concern. Make it easy for employees to raise their concerns internally. Consider setting up a third-party confidential helpline for employees to raise concerns and obtain advice as to the appropriate next steps, and to give them the confidence to raise their concerns.

Consider having a pre-prepared ‘holding statement’ for public allegations concerning current or former employees. This will enable you to react quickly and decisively and help to deflect any negative publicity. Nominate a person/crisis management team to deal with the media fall-out.

If the crisis happens, and the employer is implicated in a public allegation of sexual harassment, take a leaf out of the book of those organisations that have been in this situation: act decisively and promptly. Where the allegations concern a current employee, publicly acknowledge that the issue is being investigated, but do not admit or deny anything (this may be your pre-prepared holding statement). Take immediate steps to conduct an internal investigation as you would for an internal complaint. The fact that the behaviour complained of was outside the workplace does not mean that the employee should not be disciplined or even terminated.

And do not forget to communicate internally: not only may an external allegation trigger internal workplace complaints about the same individual, remember that your employees are your ambassadors – they need to appreciate that you are taking the right course of action.

All employees have the right to a working environment that is free from sexual harassment, and all employers should be striving towards that goal, to do the right thing and to safeguard the health and well-being of their employees. Employers should also be cognisant of the potential for significant reputational damage of public allegations of harassment by former or current employee and seek to limit such damage by taking the appropriate steps.