When #MeToo Can Mean #Liability for Employers

Bill O’Reilly.  Harvey Weinstein.  Roy Price.

Recently, headlines and front pages have been saturated with stories of workplace sexual harassment.  HR professionals are taking a closer look at corporate culture, specifically the policies and procedures that support a workplace environment free from harassment and discrimination.

But what happens when these same HR professionals become aware that an employee has a #MeToo post?

Last week, actress Alyssa Milano tweeted to the her over 3.25 million followers asking those who have been sexually harassed or assaulted to reply “me too” in order to amplify the magnitude of the problem.  Milano’s tweet resulted in a flood of women coming forward both in public and on social media declaring that they too experienced sexual harassment and/or assault.

In some instances, an employer may incur liability due to the social media activities of its employees.  Does that include #MeToo?

Must an HR Professional Investigate a #MeToo Post?

The answer is probably no.  The difficultly for employers is that many of these postings are a #MeToo response with nothing else.  Unless the author offers more information or the HR professional is aware of additional circumstances or facts that would indicate the post was in reference to the employee’s current workplace, the employer likely under no legal obligation to investigate.

Should a HR Professional Follow Up with an Employee with a #MeToo Post?

The answer here is, “It depends.”  As mentioned above, the circumstances surrounding the post, the employee, and what the HR Professional knows dictate action.  In these instances, it is typically better to ask than to bury your head in the sand if there is a concern that there may be an issue.  A simple, “I saw your post and wanted to make sure things are OK,” would suffice.  Then document the conversation.

Can a HR Professional Follow Up with an Employee with a #MeToo Post?

Yes, but this is a delicate topic.  If an employee publicly posts #MeToo, the employer may decide it wants to follow up, even if there are no circumstances that would lead the employer to believe the posting concerned the employee’s current workplace.

In these instances, the HR Professional should confidentially approach the employee to give him or her the opportunity to discuss any concerns.

Give Employees an Outlet

Some feel social media is the only way to air their grievances.  Don’t let that be the case for your employees.

  • Examine your workplace culture to ensure that both your policies and your management support a culture of openness, respect, and compliance.
  • Ensure that your anti-harassment policies include a reporting mechanism which encourages immediate reporting and does not require the compliant to take a particular form or be made to a particular person.
  • Empower employees through training on your policies and the employer’s commitment to creating a culture where employees feel enabled to confront and report sexual harassment no matter who the harasser may be.

Find more practical tips on how to keep your employer out of the headlines here.

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