Allegations of sexual harassment and assault have hit the newsalmost daily over the last several weeks, with fingers pointing atHollywood “A-Listers,” corporate executives,politicians, journalists, etc., etc., etc.

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Many of the allegations have been raised years, or even decades,after the harassment allegedly occurred. Why have the victims, bothmen and women, waited so long to come forward? Many reportedly wereafraid that coming forward would be career-ending. By remainingsilent, those victims internalized the harm, and, in some cases,continued to endure further harassment by the same perpetrators.Their silence also may have enabled the perpetrators to harassother victims.

The Fear of retaliation

In the “real world,” beyond Hollywood and Capitol Hill, how cancompanies eliminate the fear of retaliation that deters victims ofharassment from coming forward immediately? Perhaps it’s time toreexamine the complaint mechanism in the typical anti-harassment policy found in employeehandbooks.

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Most complaint mechanisms are multi-tiered, meaning that thecomplaining party is told to voice concerns to his/her immediatesupervisor, human resources (particularly if the supervisor is thealleged perpetrator), or another management official. Manyhandbooks also include “open door” policies that invite employeesto stop-by an executive’s office at any time to talk about anything(and that anything could include allegations of harassment).

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The primary goal of the typical complaint mechanism is to putthe company on notice of the alleged harassment, give HumanResources a chance to investigate and (if necessary) take promptremedial action, and create a working environment free ofharassment for all employees.

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Implementation of an anti-harassment policy with a complaintmechanism also may help employers establish an affirmative defenseto liability in litigation (known as the“Faragher/Ellerth affirmative defense”) to some typesof harassment claims, particularly if the employee did not followthe written complaint procedure.

Is anonymous reporting the answer?

The typical anti-harassment policy may not remove the fear ofretaliation, even if the policy expressly prohibits retaliation (asmost do). Perhaps the fear of retaliation can be eliminated byincorporating into the complaint procedure an option for anonymousreporting. Of course, some employers’ policies already provide foranonymous reporting, but it’s far from universal.

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Anonymous reporting is not a perfect solution. For one thing,without knowing the identity of the complaining party, it’s muchmore difficult for human resources to investigate a complaint,particularly if the anonymous complaint lacks sufficient (or any)detail as to what happened, when it happened and who observed ithappening. And, if HR can’t complete a thorough investigation,which normally would include interviewing the complaining party,then HR may not be able to reach a reasoned conclusion, takeremedial action (if necessary) against the perpetrator, and preventfuture occurrences.

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Anonymous reporting also may create proof problems when it comesto establishing the Faragher/Ellerth affirmativedefense, which often turns on proving that the plaintiff failed tocomplain about the alleged harassment. If a complaint is anonymous,the employer may never know the source of the complaint.

Necessity is the mother of invention

Despite the flaws inherent in anonymous reporting, some believethat an anonymous complaint is better than no complaint at all.That belief has given birth to a soon-to-be-launched website calledAllVoices. Created by Claire Schmidt, a former technology executiveat 20th Century Fox, AllVoices will provide an avenue foremployees to bypass human resources and anonymously reportharassment and discrimination directly to corporate CEOs and boardsof directors.

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AllVoices will aggregate reports of harassment anddiscrimination by company, deliver the complaints to each companywithout any personally identifiable information, and advise thecomplaining party when the target company has received the reportand whether the company has taken action. Schmidt describesAllVoices as “a safe place for people to report what they’veexperienced without having to come forward publicly, risk theirjobs or reputations, or fear retaliation.”

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Only time will tell whether AllVoices succeeds in achieving itsgoals, but, in the interim, it would be prudent for all employersto review their anti-harassment and anti-discrimination policies toensure that employees are, to the extent possible, undeterred inbringing complaints forward immediately.

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