Here's how your startup can avoid sexual harassment claims, in 3 easy steps

In the past year or so, several of Silicon Valley’s most prominent startups have dealt with high-profile sexual harassment issues.

A Square executive resigned amid reports of harassment. Playhaven and Sendgrid both terminated employees following an incident. And just last month, GitHub CEO Tom Preston-Werner stepped down after a very public discussion of unusual activity within the company.

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Maybe you’ve been distractedly reading these articles thinking that this couldn’t happen to you: Your company’s culture is laid back and free of tension or hostility, or you’re still just too small to worry about it.

The data tell a different story.  In California alone, more than 4,500 formal sexual harassment complaints were filed with state government agencies last year.

No company, no matter how small, progressive, or seemingly carefree, is spared the risk.  All companies are subject to the laws prohibiting sexual harassment, and smaller companies are frequently rocked by such claims.

A few things contribute to this phenomenon, the first of which is the sexual harassment cliché.  Offering perks in exchange for sex, unwanted touching, and lewd remarks about a coworker’s Speedo-ready body are all undoubtedly sexual harassment when they happen in the workplace.

Most of us don’t do these sort of things, and we assume that no one we work with or hire would, either (although you’d be surprised).

More commonly, though, sexual harassment claims actually start with a conversation or some kind of conduct among coworkers that seems welcome at the time: self-deprecating stories about online dating disasters, seemingly harmless flirting, even retelling scenes from an Oscar-winning movie.

Think about whether these kinds of conversations happen at your company (odds are, they do).  It’s possible these make a coworker uncomfortable, just not enough to bear the shame or discomfort of complaining — particularly when a company is small enough that all the employees would consider themselves friends.

These events are like accumulating tinder, requiring only a spark to set them off.  That spark is usually unrelated to sex or gender, something like the employee being passed over for a better position or an opportunity to attend a cushy conference, being laid off, or even just being criticized by the boss.  These actions make even thicker-skinned employees feel like they’ve been mistreated at work.  They realize this is just the latest abuse of many, and the built-up tinder erupts.

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The second reason smaller companies are particularly at risk is that they often don’t have basic procedures for handling these situations. Bigger companies have extensive policies and devoted human resources staff whose jobs revolve around this stuff.

While these things aren’t strictly necessary, newer companies that haven’t put anything in place are sitting ducks.  Ultimately, you will be judged most heavily on how you respond once an employee brings a harassment issue to your attention.

Fortunately, there are three easy (and cheap!) things that every company can do to make sure its employees feel protected and respected and to dramatically decrease exposure to a massive lawsuit.

1. Create a sexual harassment policy. You want a work environment that’s free of harassment, where all your employees feel they can bring issues to the company’s attention without fear of retaliation.  Put it in writing.  Define what’s unacceptable, and create a process by which someone can report problems by identifying at least one person at your company who you’ve designated to receive complaints.
2. Be non-defensive. Train the person who’s going to receive complaints (and management, if these are different people) to be non-defensive. Nothing could be worse for an employee who already feels mistreated than being confronted with disbelief, cross-examination, or having the conversation turn into one about how they cut out early on Fridays. Listen, be sympathetic, take notes, and assure the employee that the company will respond. It’s also critical to be open and non-judgmental with any employees who are accused of harassment. The key is to get everyone who is involved to see the situation as a learning opportunity.
3. Follow through. When an employee brings an issue to your attention, do something. If you drag your feet or just flat-out fail to investigate a complaint, your problems will increase exponentially. Your investigation doesn’t have to be sophisticated; it just has to be fair and genuine. When you’re done, communicate candidly with all employees involved, and follow up with them over the following weeks to make sure that any resolution you agreed to is working.

There are a ton of basic harassment policies, investigation pointers, and training materials available online that you can customize to fit your needs and culture; or you can pay a lawyer a few hundred bucks to do it for you.

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Think about it as growing your company, while also preventing unforeseeable and untold heartache down the line.

Matt Jedreski and Mike Etchepare are attorneys with Paul, Plevin, Sullivan & Connaughton LLC, a labor and employment law boutique committed to creative and value-based solutions for companies and public entities. They’re based in San Diego and Sacramento and advise California employers of all sizes with a focus on startups, employee mobility, discrimination, harassment, and wage-related issues.