5 Ways Board Members Can Mitigate #MeToo Risks
In light of reports claiming former CBS CEO Les Moonves obstructed an investigation of sexual misconduct allegations against him, here's a look at five ways board members can prevent harassment, and keep investigations independent.
December 05, 2018 at 05:34 PM
4 minute read
More than a year into #MeToo, sexual harassment claims have hit company leaders in entertainment, law and other industries, and launched a series of internal investigations into misconduct.
But not all of those investigations have gone uninterrupted. According the New York Times, a drafted report for CBS's board of directors claims former company CEO Leslie Moonves destroyed evidence and obstructed an investigation of his own sexual misconduct allegations.
Moonves' alleged harassment and assault of women at CBS, as well as investigation tampering, gives the board justification to deny him his $120 million severance package, the report said.
There are ways that boards can mitigate and prevent #MeToo risks before it gets to this stage. Here are some tips on how the board can prevent sexual harassment at the company and help ensure allegations and investigations are handled properly.
1. Take a look at policies and training: The best defense is a good offense. Boards should ensure company policies are up to date with industry standards, and take a clear stance against sexual harassment in the workplace. It's also important to have training in place for employees at all levels of management, said Elizabeth Torphy-Donzella, a litigation partner at Shawe Rosenthal. “Demand to review the policies and procedures in place,” she said. “Making sure that [board members] lay their eyes on the harassment and discrimination policies, the code of ethics, to make sure that they meet prevailing legal standards.”
2. Get reports from HR and legal: Board members can spot an issue sooner by getting reports from legal and human relations teams. These departments can provide analysis on complaint trends. If one area of the company or an individual has received a growing number of harassment complaints, the board should know.
Board members should let legal and HR know what types of matters should be flagged in meetings, said Cristina Rodriguez, a partner at Hogan Lovells who handles litigation and investigations.
“I have seen clients have internal protocols for [notifying the board] and I think board members should ask whether there are those protocols,” Rodriguez said. “If there aren't, they should convey their expectations, 'Look we don't have a written protocol but if there is anybody in the C-suite against whom there is an allegation of harassment or an allegation of other serious misconduct, I want to at least know about it.'”
3. Make expectations for the C-suite known: Entry-level employees and C-suite executives alike should know that harassment at work will not be tolerated, and that if they are harassed or assaulted by anyone in the organization, their claims will be taken seriously. The board should inform executives that allegations against C-suite members must be disclosed.
“The reality is the C-suite, in my view, is charged with modeling the conduct that is excepted of everyone in the company. … It would seem to me the board should make clear to the whole C-suite that, look, we hold you out as exemplars,” Rodriguez said.
4. Investigations should be independent: When allegations against the CEO are being investigated, the CEO should not have power over that investigation. In fact, the entire process should be handled by someone independent from outside the company, not HR. If it's a law firm commonly used by a GC being investigated, turn to a new firm without strong ties to the individual under investigation, Rodriguez said.
“Make the demand that the CEO not be the final arbiter, that the board be the recipient of and the monitor of the investigations involving the CEO or anyone in that C-suite. The CEO cannot have control over that [investigation] or veto power,” Torphy-Donzella said.
5. Create a culture where employees feel heard: Having a hotline or online system where people can report harassment or assault can be helpful, Rodriguez said, so that there's a clear place for employees to speak out. Employees also may be more likely to report harassment and assault if they feel their voice matters.
Board members making occasional rounds through company offices so all workers feel they matter to the board could help promote people coming forward when there is an issue, Torphy-Donzella said. “Setting the tone from the top is important,” she said. “It can be as small as board members periodically as a group visiting departments, make their presence known and letting people know that they're not removed from them and they're not on a pinnacle that is unapproachable.”
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