July 28, 2020

With reports that the games industry is in the midst of its own #metoo movement, it’s clearly a very sensitive and challenging time for all those associated with interactive entertainment.

It’s no secret that the games industry is male dominated – there have long been calls for greater gender diversity. However, recent press coverage indicates that the issue is not only the lack of women but also the way some women in the industry are treated. Reports suggest that sexual harassment is rife, with a growing number of individuals coming forward to speak about their experiences. The concerns also appear prevalent across all areas of the industry, with allegations surfacing within the walls of renowned AAA games developers, prominent publishers, streaming platforms, gaming news outlets and esports businesses.

It’s a positive sign that women are starting to share their stories of mistreatment and feel confident doing so. There is clearly no place for harassment, sexism and intolerance in this day and age and the sooner the industry can stamp these out the better. But successfully tackling these issues is never straightforward.

So what can you do to de-risk your business in this area?

Above all, proactivity is key. Your business must stay alert and put measures in place now in an effort to prevent any issues from occurring. And if they do (and unfortunately that will be a reality for some), you must have robust internal procedures ready to apply and ensure they are actually followed in practice.

The current economic climate brings a real risk of market contraction and focus is therefore naturally elsewhere for many currently. However, if ever there was a time to avoid getting embroiled in an expensive or reputationally damaging harassment dispute, it would be now.

We hope the briefing below will provide some useful initial guidance in this area and help your games business plan an effective HR strategy going forward.

The law

The first step for all businesses is to understand what constitutes sexual harassment. In short, this is defined as any unwanted conduct of a sexual nature which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading or offensive environment for them. It will also cover cases of less favourable treatment experienced by a person who rejected or submitted to the conduct in question.

What this means in practice is that the legal definition is very broad. Persistent behaviour is not required and a one-off incident will often be enough to constitute harassment. Conduct can also be verbal or physical and will encompass a variety of actions, such as problematic banter, suggestive comments which an individual finds uncomfortable, acts of brushing against another individual’s body, holding someone back in their job for rejecting an advance as well as more blatant acts of sexual intimidation and assault. It is also a subjective test. An act that may not intimidate or offend one person might constitute harassment for another.

While the actions that could be regarded as harassment can often vary greatly, they all have the potential to lead to substantial financial liability. This is because employers can (and often are) held vicariously liable for the actions of their employees. If that were not bad enough, they often cause significant detrimental impact to internal culture and morale and have the potential to cause irreparable reputational damage if matters become public.

What steps should you take?

As an employer, you are expected to create a safe working environment for your staff. In additional to the usual health and safety considerations, this also means ensuring that individuals can do their jobs free from harassment and discrimination. The first step to achieving this is to promote the right culture internally. This may mean reviewing usual practices for work social events and reflecting honestly on whether any typical internal behaviours (such as office vibe or routine banter) is appropriate or has the potential to cause offence.

Once any potential cultural issues have been considered and addressed, it is important to ensure that appropriate internal policies are in place so that your values and procedures are clear and accessible. These days, equal opportunities policies and anti-harassment and bullying policies are common but you should revisit these if you have them (and prepare them if you don’t), making sure they are fit for purpose.

An effective anti-harassment policy should take a zero-tolerance approach to any form of harassment and encourage staff to raise concerns internally. There should also be a clear process setting out how individuals can raise concerns and through which allegations are robustly investigated and dealt with. In some cases, this may involve taking immediate steps to separate the person who has made the accusation and the alleged harasser. Policies will often also deal with considerations such as requests for anonymity and the repercussions for making false or malicious allegations.

In conjunction with introducing or updating appropriate policies, it’s crucial that these are communicated to the workforce and adequate training is provided. Anti-harassment training for managers and heads of department is now routine within most media businesses and, together with a robust policy framework, can provide a useful defence to claims of vicarious liability.

Why now is the time to take action

The last thing any company needs right now is a sexual harassment debacle. But with the games industry continuing to be exposed to such allegations on an almost daily basis, it’s essential that businesses are prepared.

Proactive preparation at this stage is not only best practice to foster a positive and diverse culture within your workforce (which can naturally have significant reputational benefits) – it can also prove vital as a defence to future legal proceedings.

We have been advising our media clients on how to mitigate risk in this area for a long time and have considerable experience dealing with allegations that arose following the Harvey Weinstein revelations and the first wave of #metoo. If you would like assistance with developing an effective HR strategy or further advice on any of the points mentioned, please do not hesitate to reach out to any of the team.