Executives and Corporate Boards in every industry are grappling with the explosion of sexual harassment complaints seemingly triggered by the claims against Harvey Weinstein. If your organization has not yet experienced a #MeToo type claim, now is not the time to be complacent or self-congratulatory. Rather, now is the time to assess anew your organization to ensure that conditions that might give rise to such a claim do not exist and that you have the internal structure and processes in place to respond promptly and appropriately if a situation does arise. In doing so, remember that the corporate tone is set at the top and matters.

The Corporate Tone Matters

To start, consider who has the power in your organization and how they behave. Harassment usually occurs when one person has power and others in his or her ambit do not, and the person with the power abuses it. While co-worker or peer harassment certainly exists, can create a hostile work environment if it is severe and pervasive, and may be legally actionable, most of the claims that have captured the public's attention recently have involved wrongdoers who are in positions of power and have misused that power. The cases that pose the greatest risk are those where the organization's leader(s) or senior executives are involved. So now is the time to consider your organization's leaders and culture. Are your leaders held accountable for how they treat people below them? Or, is yours an organization where success in the role as measured by metrics such as profits, number of accounts, ratings etc. always trumps how the employee behaves and treats others? In other words, what message is the organization sending about what conduct it rewards?

Also, listen to what is being said about your leaders. While no organization should manage itself based on rumors, senior management should not ignore or turn a blind eye to “word on the street” intelligence. If an organization is made aware of prior bad conduct by an executive or manager, perhaps at a prior employer, or off-hours behavior that spills over into the workforce, that knowledge will be imputed to the employer if and when a complaint is made. Likewise, if it is an 'open secret' among the company's leadership that a particular executive engages in harassing conduct, it will be difficult to claim no prior knowledge if a claim is made. While the employer in such a situation may not be legally liable absent a prior complaint, in the court of public, employee or investor opinion, it will not work to say that no formal complaint had been lodged.

Now is also the time to review your Human Resources function. HR personnel are often the face of the organization to employees who have been subjected to harassment or otherwise believe they have been discriminated against. A strong, trusted HR department can often identify and address issues before they mushroom and spiral into a crisis. How about your HR function? Does corporate leadership respect HR? Or do they just view HR as a necessary, but unimportant, function? Do employees have confidence in the HR team or do they view them as “part of the problem,” doing whatever senior management wants? Does HR have the guts to advise the CEO, the General Counsel or even the Audit Committee of an issue if circumstances warrant?

In many industries, #MeToo complaints are coming not only from regular employees but also from interns and temporary employees. A number of recent complaints have also been from former or prospective employees or interns who have reached out to executives or leaders for purposes of networking or obtaining career advice and then been subjected to abuse or in some instances, assault. The disparity in power or perceived power is particularly prevalent between organization leaders on the one hand, and interns, temps and job seekers, who are also often younger and less experienced, on the other. Thus, as part of an assessment, review how issues presented by interns and temps and job seekers are handled. Does HR act on complaints from job seekers? Does the organization provide harassment training to interns and temporary employees? Does the organization's culture embrace all workers?

Finally, do not overlook the little things. They too set the corporate tone. Consider a tech company that has a practice of providing male, but not female, engineers with a company jacket. The excuse given is that there were a sufficient number of male engineers that the company could get a group discount for men's jackets, but could not get one for women's. One could say that this is a little thing, but it may send a message that men are part of the organization's club but the women are not. This could contribute to creating an atmosphere in which women do not raise concerns before they erupt.

Empowering Bystanders to Become Upstanders

In many of the reported #MeToo incidents, bystanders have gone on the record to say that they knew about the harassment or abuse but did nothing and now regret having not spoken up. As to Harvey Weinstein, Quentin Tarantino has been quoted by The New York Times as saying that he now feels ashamed that he did not take a stronger stand: “Everyone who was close to Harvey had heard of at least one of those incidents” and “I wish I had taken responsibility for what I heard.” NY Times, October 19, 2017.

First line managers and co-workers are often in a position to see and hear what is going on and often know when another manager or employee is acting inappropriately. Yet, bystander passivity—indifference and/or inaction—is a pervasive issue. There is no one reason why people stand by in the face of harassment, abuse, or bullying. They may fear that they will retaliated against if they intercede. They may not be sure they understand what they have witnessed. Or they may not know how to take action.

Thought should be given to how bystanders can be empowered to become upstanders and how the organization can create a culture where leaders understand that dealing with issues early benefits everyone—the organization, the aggrieved individual, and even the person engaging in the objectionable behavior. The fact is that sometimes an early and well-placed word of caution can result in a leader modifying what is seen by some as objectionable behavior in the workplace. Without that word of caution, behavior can sometimes escalate in the other direction. So everyone can benefit from proactive intervention in situations where problematic behavior is starting to occur.

Educational institutions are now training students and faculty on how to be an upstander, to be one who disrupts or responds to incidents of sexual assault on campus or bullying in school. Employers can learn from such training and should consider incorporating it into their harassment training. Such training includes how to recognize harassment, why it benefits everyone to stand up, and offers suggestions for how the individual may respond to an incident by disrupting it at the time or by reporting it within the organization.

How a Complaint Can Snowball

When a complaint is made, it can often escalate. We have seen in recent months that one harassment complaint can yield what seems like an avalanche of additional complaints. In some instances, it is simply that having one person come forward gives comfort and credibility to others to do the same. But, oftentimes, it is discovered that there were underlying issues that had gone unredressed and thus when the first open complaint is made, pent up frustration is unleashed.

An important first step in responding to such complaints is a thorough investigation. While the temptation may exist, particularly with complaints against high profile executives, to effectively sweep the complaint under the rug, that is a mistake. Generally the more senior the executive, the greater the need for a prompt, thorough investigation—often conducted by someone outside the organization. Depending on the complaint, it may even be advisable to have the concern investigated by someone completely independent of the organization. Increasingly, Boards are being called upon to oversee such investigations, particularly when the conduct of the CEO or other senior leaders is in question.

Multiple claims can quickly become a PR nightmare. Advance crisis planning and a careful communications strategy can help limit the reputational damage, but having a corporate culture and tone in place that respects individuals and does not tolerate harassment and bullying will serve the organization well when a complaint is made. Strong ties with community and affinity organizations can also prove invaluable when complaints surface.

Because many complaints are often rooted in the imbalance of power in the workplace, claimants may not only present allegations of harassment but also call into question all employment actions taken by the alleged wrongdoer, including pay and promotion decisions. Increasingly, we are seeing complaints of harassment merging with claims of pay discrimination. Thus, now is also a good time to review your organization's compensation structure and assess whether employees are being paid fairly and equitably.

In this regard, we are also seeing an increase in shareholder initiatives around pay equity and diversity. A publically traded organization needs to be mindful of the potential for such proposals, particularly following any high profile complaint of harassment or discrimination.

Finally, in responding to a complaint of harassment, your organization should be sure that any issues not be compounded by retaliation against the individual bringing forth the concern. Even well-intentioned actions, such as separating a subordinate from her supervisor, may be perceived to be retaliatory if the employee considers the reassignment to foreclose future opportunities.

Responding to a Complaint Requires Thorough Investigation and Understanding Your Organization

Quickly responding to a complaint should not mean rushing to judgment without a proper investigation, which entails giving both the victim and the alleged wrongdoer(s) an opportunity to be heard. In the current climate, the press or social media often get out ahead of an investigation, and this exacerbates the challenges for an organization trying to ascertain what has in fact occurred. Added to that is the tension between transparency, so everyone has confidence in the process, and confidentiality, to protect the privacy rights of the victim and the wrongdoer.

Redressing issues of harassment also requires understanding your organization and its culture. Indeed, even conducting an appropriate investigation requires an understanding of the organization, its reporting structure, and its unique culture. The investigation should be tailored to the organization. Sorting fact from fiction requires care, and often times, retaining an outside, independent investigator is best.

During the course of an investigation, any number of issues may arise and need to be resolved. Should the investigation be limited to the specifics of the complaint presented or should a broader investigatory net be cast? Will the investigation be done under privilege? If so, that affects who does the investigation and how the results are shared. With whom will the results be shared? This will require an assessment of the desires of the victim, the culture of the organization, and the scope of the issue.

Finally, there will be decisions to be made about who decides what corrective actions will be taken? An independent investigator can make recommendations, but someone in the organization has to make the decision. At what level of the organization should that occur? Often, the alleged wrongdoer's manager is the appropriate person but not always.

In sum, be sure that your organization is prepared to take prompt, thoughtful action that is tailored to your business so that it will be effective and fair.

Alison Marshall, based in Washington, D.C., and Deborah Sudbury, based in Atlanta, are Partners in the Labor and Employment practice of Jones Day. The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.