United States: Me Too, But Now What? What Board Members Need To Know About Workplace Sexual Harassment

Allegations of workplace sexual harassment and assault have recently made headlines from Silicon Valley to Hollywood and have brought down the careers of numerous high-profile executives. Partially a response to the uptick in reports and partially a catalyst for new complaints, the "Me Too" hashtag prompted thousands of women and men to take to social media and share stories of sexual harassment and assault.

Now, in boardrooms from coast to coast, directors and trustees are grappling with how to respond. This primer discusses the impact that sexual harassment and assault allegations can have on companies and identifies steps that a Board member can take to both respond to allegations and avoid future claims. While this primer focuses on sexual harassment and assault, it is important to note that applicable law and Human Resources policies cover other forms of harassment as well.

Why Sexual Harassment and Assault Allegations Should Matter to the Board

If there is a lesson from the recent wave of high-profile claims it is that sexual harassment and assault allegations are bad for a company's bottom line, reputation and corporate culture.

  • Above all else, sexual harassment and assault harms victims, and should not be tolerated by any entity that claims to value its individual employees and staff members.
  • Litigating or settling claims can cost millions of dollars, both in terms of defense costs and the costs of settlement or judgments.
  • Boards of Directors of public companies have obligations to disclose harassment claims to shareholders in certain cases. Such disclosures can negatively affect stock price and leave the company vulnerable to shareholder lawsuits. One company's multiple sexual harassment settlements recently prompted an extensive federal investigation into whether it properly disclosed those settlements to shareholders.
  • Even in closely-held companies or non-profit organizations, high-profile sexual harassment allegations can result in negative media coverage and long-standing reputational damage, which in turn impacts fundraising efforts and recruitment and retention of talented employees, and leads to negative customer or client sentiment.
  • Sexual harassment investigations may result in terminations or resignations. If they involve senior executives, such departures can lead to major organizational shifts and detract from an organization's long-term growth goals.

What the Board Needs to Know – Questions to Ask Management

Directors should educate themselves on how their companies currently handle sexual harassment claims and when and how the Board is informed about complaints.

  • Ask the Human Resources, Compliance or Operations team for copies of your organization's sexual harassment policies and investigation procedures.

    • Review them at your next Board meeting and confirm that the Board knows its role in handling sexual harassment or assault allegations. For example, many company policies allow employees to report sexual harassment to the Board, particularly if the alleged harasser is at the most senior level within the company.
    • Ensure that management is familiar with its role in reporting and investigating harassment claims and that the company is following its own policies and procedures.
  • Ask your Legal and/or Finance team "who, what, where, when and how" with respect to the company's policies and procedures for reporting sexual harassment claims to the Board.

    • Review who at the company is responsible for reporting claims and at what point the claims should be raised to the Board. Not every internal complaint will need to be reported to the Board depending on the size of the company and the nature of the complaint.
    • Confirm what factors the company is using in determining whether a claim should be reported to the Board, such as monetary thresholds or whether claims are only reported after litigation has been initiated.
    • Determine whether claims are identified to the entire Board or a committee thereof. If it is not clear, implement a plan for who on the Board will receive notice of such complaints.
    • Review how claims are tracked and valued in terms of financial risk to the company.
    • For public companies, review with your Legal team when claims must be disclosed to shareholders and how much information should be shared.
    • Be aware of aware of attorney-client privilege. Ensure that in-house or outside counsel are involved in the reporting process to maintain privilege as necessary.
  • Make sure that the Board has access to information about prior complaints and outcomes, which will help reduce the likelihood that a pattern of complaints goes unnoticed. Remember, there can be consequences for improper behavior even if it does not amount to illegal harassment or rises to the level of violating company policy, particularly when there is a pattern of improper behavior.

How the Board Should Manage Internal Harassment or Assault Complaints

The Board may learn of a sexual harassment or assault complaint from any number of channels, including a formal report from the company, a direct complaint from an employee to a Board member, or a blog or social media post. However it is notified, once the Board learns of such a complaint, it should take immediate steps to ensure that the company properly addresses the complaint.

  • Create a focused response team with representation from Human Resources, Legal, Public Relations and Compliance that will manage the company's approach to a sexual harassment or assault complaint on multiple fronts.
  • Ensure that the company completes a full investigation of the allegations, which may include interviews with relevant witnesses and a review of relevant documents.
  • Employees (and judges and juries) want to see companies move quickly and decisively to review complaints and determine next steps.

    • Consider enlisting outside counsel to conduct your investigation, especially those involving senior management, in order to (1) maintain attorney-client privilege (to the extent possible); (2) ensure an objective third-party reviews the facts; (3) assist you in determining appropriate remedial actions, if necessary; and (4) keep the investigation moving forward on a timely basis.
    • If the complaint involves senior executives, and depending on the size of the company, ensure that the Board reviews the findings of the investigation and is involved in determining appropriate next steps.
    • If the complaint involves allegations of sexual assault, discuss with the complainant whether and how to alert the proper authorities.
  • Manage the message, particularly for high-profile harassment claims.

    • Consider a plan for handling media inquiries and work with outside public relations or other parties if necessary to minimize any reputational damage.
    • Ensure that you have outside public relations professionals identified in advance should the need arise.
  • Be mindful of retaliation and ensure that managers work with your Legal team in taking any employment actions involving the complaining party or any participants in the investigation.

How the Board Can Be Proactive in Avoiding Claims and Mitigating Future Risks

The Board can play an important role in setting the tone for a harassment-free workplace.

  • Maintain a 21st century sexual harassment policy.

    • Revise your policies and procedures if they are outdated or generic.
    • Review your technology policies to ensure that the company's non-harassment policies extend to use of its technology and that the company has a right, but not the obligation, to review and access any messages or information transmitted on company systems.
  • Consider non-harassment training, as well as diversity and inclusion training for the Board, senior management and/or all employees.

    • These trainings send a message that the company is committed to maintaining a harassment-free workplace.
    • Outside counsel can tailor trainings to these various groups of employees.
  • Discuss the merits and potential drawbacks of additional reporting mechanisms, such as an anonymous hotline or an ombudsperson, with your Legal team.
  • Review the "Cause" provisions and indemnification requirements in executive and other employment agreements. On a go-forward basis, ensure that violation of sexual harassment policies constitutes a "for Cause" termination and consider requiring executives to indemnify the company if there are proven allegations of sexual harassment or assault.

    • Many companies still have to pay out huge severance packages to C-suite managers who were accused of or even admitted to harassment.
    • Review equity, options, bonus and other incentive compensation plans along the same lines.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.