Corporate boards may need to prepare to defend against #MeToo lawsuits that expand beyond harassment claims as early as next year, according to the WomenCorporateDirectors Foundation (WCD). The group released a list of 10 issues that should be high on the agendas of corporate boards in 2020 that warns that the next level of #MeToo lawsuits will likely target executives for misconduct involving gender discrimination and retaliation.
“Even in companies taking progressive measures, I’ve seen situations in which #MeToo has exposed fault lines within the organization,” Vanessa Griffith, partner, Vinson & Elkins LLP stated in a WCD release. “Some employees are showing their lack of trust in their colleagues, in the system, in management by saying: ‘Well, now I’m not going to mentor women, or be alone with women or travel with them.’ They are opening up themselves and the firm to discrimination claims from women who have had their careers negatively impacted by a refusal of men to take on appropriate roles of sponsorship and mentorship. So they’re trading claims of harassment for claims of discrimination or retaliation somewhere down the road.”
The risk of additional lawsuits associated with #MeToo impacting the company should be taken seriously, especially by companies that have already dealt with these allegations and lawsuits. Directors must focus on implementing measures that can mitigate the risk of such lawsuits.
Here are some things boards may want to consider:
Conduct a thorough review of the corporate culture. While all boards have been more mindful of corporate culture over the last few years, it’s time to determine if real change has eliminated employee concerns about harassment, discrimination and retaliation. Push for management to use employee surveys, a re-emphasis of the company code of conduct and direct employee engagement to gain insight into areas that could present problems in the future.
Conduct regular employee reviews and keep clear records. Talking to employees about workplace issues, listening to what they say and documenting those exchanges is critical. Documentation of employee complaints and their responses to performance reviews must be impeccable. The company’s response to employee complaints and the results of any internal investigations must also be cataloged.
Start a formal mentoring program. Starting a formal mentoring program can eliminate some of the issues around women feeling they are not being prepared to move ahead in the organization. A professionally run, fairly implemented program can help ALL employees by identifying top talent inside the company which can create a pipeline of executives ready to step in and take the company to the next level.
Review and strengthen policies on workplace misconduct. Has the company gone to great lengths to make sure everyone understands the company policies on workplace behavior? Are the procedures for reporting employee concerns up to date and effective? Is there an anonymous hot-line for employee complaints? Are company policies on workplace behavior reviewed often?
Review and update D&O insurance policies. Be sure everyone understands what your current D&O policy covers and update the coverages if necessary. Make sure you also have employment practices liability insurance to deal with employee discrimination and harassment claims.