While the Access Hollywood tape has been making news for the last week or so, mainly for what Donald Trump said, there is something else that has stood out: Billy Bush’s ‘role’ in the whole affair. Bush’s attorney reportedly said, “If Billy had been passive or responded, ‘Shut the f— up’ to Trump, Billy would have been out of a job the next day.” This certainly does raise some questions about behavior in the workplace. Is laughing considered a form of agreement with something a supervisor, co-worker or client says? Of course Bush went a step further, he didn’t just laugh along, he also made some comments I think we can all agree are inappropriate (especially at his place of work).
- Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
- Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
- Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
- Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
- Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through.