No matter how you look at it, 2017 was the year when people decided they’d had enough of sexual harassment. You could tell something was brewing early on. By the beginning of the summer, several male VCs had been named and shamed for using their position of power to coerce female founders into having sex with them. However, things didn’t really kick off until the Harvey Weinstein scandal exposed sexual misconduct in the entertainment industry. This encouraged tens of millions of women around the globe to share their stories about groping, gender discrimination and sexual misconduct from coworkers and superiors. Politicians, actors and other high-profile men have all been caught in the crosshairs. In a rather telling move, Time Magazine named the women standing up against sexual assault its Person of the Year, passing over runner-up Donald Trump who famously bragged about groping women in the Access Hollywood tape. Clearly there is no place for sleazy behaviour anymore.
For startup founders, the #MeToo movement should serve as a wake-up call that they have to ensure that sexual harassment doesn’t happen on their watch. “Not doing anything to prevent it can be quite costly both financially and reputationally,” says Sarah Chilton, a partner specialising in partnership and employment law at CM Murray, the law firm. The size of the fines founders may face depends on the severity of the actions but could amount to hundreds of thousands of pounds. For instance, in 2014 an employment tribunal awarded £360,178 to a former employee of BAE Systems who was dismissed after complaining that four colleagues had bullied and sexually harassed her. “And that’s not even mentioning the cost in management time that ticks away dealing with internal complaints and tribunals,” Chilton says. “It’s quite a big undertaking.”
Fortunately, new enterprises have an advantage over more established businesses when it comes to preventing sexual harassment. “You can more easily control your culture because you are smaller,” says Chilton. Since startups don’t have to deal with any cultural legacy, they can ensure from the get-go that there is no room for risky banter that could lead to people feeling uncomfortable. “Nip it in the bud quickly,” she says. “Don’t allow things to fester.”
An essential step to establish a culture that shuns sleazy behaviour is to understand what sexual harassment is. “This is important as you see a lot of people who are accused of it saying ‘yeah, I did X, Y and Z but I didn’t harass anyone,’” Chilton says. “But the legal definition is any unwanted physical, verbal or non-verbal conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading or offensive environment.” In other words, what the law views as harassment differs from case to case. For instance, while the talkRADIO presenter Julia Hartley-Brewer thought defence secretary Michael Fallon touching her leg at a dinner was “mildly amusing”, tribunals have previously deemed similar unwanted touching as sexual harassment. “So to an extent there is an element of subjectivity,” says Chilton.
Fortunately, business leaders can prevent these things from happening to some extent by establishing thorough policies. “These should include the standard of conduct of what is expected of an employee in the workplace and what behaviours will not be tolerated,” says Chilton. Furthermore, these policies should also outline the potential repercussions of harassment and ways to report concerns. While this will help establish a better culture, it could also help convince tribunals that the employer has taken reasonable steps to prevent bad behaviours if they do happen, which could put the blame and any potential fines solely on the shoulders of the harasser. “It’s important to understand that the employer may still be responsible for the harassment but it will at least give them a shot at defending themselves,” Chilton says.
Aside from possibly minimising the risk of being liable for an employee’s poor judgement, these policies can also demonstrate the employer’s commitment to taking these matters seriously, which would encourage people to take action when they are harassed. “Many people don’t report the harassment because they are worried about the repercussions it might have,” says Chilton. And its easy to see why, as 16% of the women who reported sexual harassment said things got even worse after doing so, according to research by the Trades Union Congress. That’s where having clear policies can help. “Put yourself in their position” says Chilton. “If the company has never publicly made it a priority, never had a training session about it or said that they endeavour to have a harassment-free workplace, then it’s easy to think you’ll never going to be believed or protected and that your career might be ruined.”
So not only can putting these policies in place prevent a startup from facing hefty fines, it can also ensure women who experience unwanted advances can step forward. And when they do, it’s important that the employer take action fast. “Failure to act quickly could potentially risk being seen as not having taken reasonable steps to prevent further harassment,” says Chilton. That in turn could mean that the company could still be held liable even with a policy in place. Acting promptly, the employer should investigate the allegation and consider whether or not the actions would justify suspension and if there should be a disciplinary hearing. “The important thing is that people must know that it will be dealt with harshly and that this culture doesn’t allow people to act like this,” says Chilton. “If you do that, you’ll risk a lot less.”
While establishing these procedures and acting on them quickly will not prevent all cases of sexual harassment, at least it will discourage most of them from behaving badly.
Sarah Chilton published in Elite Business