How dare they defend themselves!

Apparently, public relations and Human Resources professionals, and lawyers, should not represent employers and accused individuals in matters related to sexual harassment. And women shouldn’t stick up for them. We’re all just members of the “Sexual Harassment Defense Industrial Complex.” According to an article by Sarah Ellison in last week’s Washington Post

Loosely defined, the complex is a mix of lawyers, public relations professionals, female character witnesses and pundits who play a role in beating back sexual harassment claims when they are leveled against powerful men backed by a powerful institution. It also includes “in-depth internal investigations,” . . . which are often led by attorneys hired to defend the companies.

Wow. Sometimes witnesses (and females, yet!) are supportive of the accused rather than the accuser? And employers sometimes ask their attorneys to conduct harassment investigations? What’s the world coming to? 

Guess who doesn’t like this. Why, it’s the lawyers representing the alleged victims! Here’s what plaintiff’s lawyer Ari Wilkenfeld had to say:

The developments in the law have allowed defense attorneys who specialize in sexual harassment cases to sell corporate clients a smorgasbord of products, from boilerplate policies to trial defense — none of which, Wilkenfeld says, have had any measurable impact on the sexual harassment problem “other than to make a ton of money for these lawyers.” With these attorneys’ help, corporations are treating sexual harassment less as a legal or ethical problem than a public relations one, where employers “are making a big show of conducting internal investigations.”

I am touched that Mr. Wilkenfeld cares so deeply that employers be good stewards of their money.

The defense bar — sorry, I mean the Sexual Harassment Defense Industrial Complex — could just as well accuse plaintiffs’ attorneys of showboating while accomplishing very little for their actual, living clients. And PR campaigns? Companies need their own PR campaigns because plaintiffs and their lawyers have made this into a PR issue.

Don’t get me wrong. Some of my best friends represent plaintiffs, and they are outstanding lawyers who care about their clients. I don’t know Mr. Wilkenfeld, but he may fall into this category. I hear that plaintiffs’ lawyers take somewhere between 30 and 40 percent of any settlement or judgment they can get against an employer, so they make good money, too. I have no problem with that. Why do they begrudge us our billable hour?

Yes, sexual harassment exists, and some companies respond inadequately. Sometimes they’re worse than inadequate — they may have egged on the harassers or retaliated against victims for complaining. 

I would even concede that a relative handful of harassment investigations may be nothing but a PR whitewash.

But the vast majority of employers care very much about preventing and remedying any sexual harassment that takes place in their workplaces. Those “boilerplate policies” can help to educate employees about their rights and also let them know the type of behavior that is unacceptable. (The same is true for harassment training.)

By the way, our firm has a boilerplate harassment policy. We offer it free on our website to anybody who wants it. 

When most employers commission an investigation, they let the chips fall where they may, and they take appropriate action against the harasser and to protect the victim if the allegations are substantiated.

The WaPo article had a comment from a person who is after my own heart:

I’m afraid this “industrial complex” thing is going to catch on. After the WaPo article appeared, The Wall Street Journal had an op-ed piece from writer Abigail Shrier, who argued that Bill Clinton did not sexually harass Monica Lewinsky. (I agree, and said the same thing here in 2016.) According to Ms. Shrier,

The harassment-industrial complex—lawyers, human-resources professionals, activists—has installed itself as our collective chaperone, the high priest of courtship, vested with power to decide which advances are kosher.\

Ms. Shrier’s “complex” seems to be a bigger tent, consisting of lawyers on both sides, HR, and activists. I’m not going to comment about “activists,” but I think she fails to sufficiently acknowledge the fact that lawyers on the defense side and HR are only doing what they have to do to protect their clients and employers from liability. 

If we seem a little skittish about consensual relationships, flirting, vulgarity, and “playful” behavior in the workplace, it’s because we’ve seen where that type of behavior can lead. Someday you’ll thank your friends in the Sexual Harassment Defense Industrial Complex. 

Of which I’ve been a proud member since 1988.


Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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