Over the past year, we have all watched the garish spectacle of various sexual harassment scandals take down powerful men in media, Silicon Valley, and most recently Hollywood, where allegations of Harvey Weinstein’s lurid conduct have engulfed the industry.
And we have read a lot of typical advice from law firms in the wake of all this: make sure you have the right policies in place, train your managers and staff, have a robust complaint procedure, and investigate all claims and respond promptly when harassment is reported.
Here’s the rub: pretty much every organization languishing under sexual harassment allegations in the past year had all that. You can bet that every company ensnared in these scandals had the right polices and procedures in place, had done sexual harassment training, had an HR department that was ready to respond. And all that preparation avoided . . . absolutely nothing. So your human resources people and legal professionals may be thinking, “We’ve got policies and complaint response procedures in place, so we’re set, right?”
Wrong.
Where is the disconnect? Why do these things keep happening? And with the orgy (pun intended) of recent publicity, what do you do to keep your company from being the next media pariah?
There are some hard truths behind every one of these situations. So let us be the first to say them:
- Many companies have “Harveys” in their midst. Companies don’t hire them intentionally, but you can’t screen an applicant for his or her propensity to coerce coworkers into sex. (We’d love to see that interview question.) More depressingly, the “bad behavior” of some executives and managers is tolerated because they are either really brilliant, or make lots of sales, or bring in lots of clients, or have some form of power and influence at the company. They have clout, and they get away with murder.
- Your Harvey’s conduct doesn’t have to be nearly as awful as Mr. Weinstein’s to be a real problem for you in litigation, in the media, and otherwise. In the case of a senior executive who has power over lower level employees, even verbal conduct or jokes can support a viable legal claim.
- Bad behavior is usually not hidden, or it’s “hiding in plain sight.” In most cases we have ever seen, litigated and investigated for our clients, for every one harasser there are often 10 people who knew about the behavior, but either tolerate it, laugh at it, or just push it aside because “that’s just Harvey” (or Jack, or Jane, or whoever). Often, these people don’t act or report for one simple reason: fear.
- Training is often ineffective. You can train and train until everyone glazes over and can recite the training from memory, but there will still be that one person, that one incident, that one “bad apple” who just doesn’t get it. And you don’t need a small army of harassers to get in trouble. You need just one.
- The final, and maybe the most important, hard truth is this: once a complaint is made, it is often too late to meaningfully mitigate your risk. You can conduct a perfect investigation, but the conduct happened already. You can be smart in litigation and settle bad cases, but even a confidential settlement doesn’t always stay confidential and may not always protect the company from bad press, a loss of prestige, and damage to your brand.
In case you’re thinking at this point that we are determined just to depress our readers, fear not. There are meaningful steps you can take to avoid these risks – it’s just that we don’t see many employers doing it. Nobody thinks of “Houston, we have a problem” as the announcement of a happy discovery; it would have been better if the explosion hadn’t occurred in the first place. An employee reporting sexual harassment isn’t cause to celebrate your wonderful complaint procedure; the damage is largely done. So what do you do to avoid the explosion?
Every HR executive and in-house legal team should be thinking about how to coach the people who know about this behavior to come forward—that is, to identify risky behavior among coworkers, and to promote a workplace culture where that’s seen as unacceptable and reportable. We are not talking about having a good complaint process. That’s a given, and all complaints should be examined thoroughly and responded to promptly.
Employers have to root out harassing behaviors before there is a complaint. They have to not just focus on limiting risks once they occur, but also—we think more importantly—on avoiding risks in the first place. If good people are not afraid to step up before there is a formal complaint, and alert HR or legal that there is someone who may be “crossing the line,” you can possibly solve several problems at once. First, you can counsel the problem employee and may end up saving his job. Second, you root out unlawful conduct and stay out of court. And third, you defuse a salacious, newsworthy train wreck of an HR situation and stay out of the press.
We see a lot of employers drop the ball after an investigation. An executive engages in harassing behavior; somebody complains; HR does an investigation and serves up a report with a bow on it. Well done. But what happens next? Remind your employees that it is imperative that they treat one another with dignity and respect; that HR keeps its door open to address possible concerns; that raising a concern isn’t “rocking the boat” or “ratting out” anybody else; and that an open, transparent and fair workplace culture is critical to the success of the business.
In the end, being able to identify potential problems before they’re actual problems is a matter of an employer’s culture. Too many companies treat employees who report concerns as risks to manage instead of as what they really are: a gift, one that helps you see the train before it flattens you. In order for this to really be effective, your organization needs to create a culture where the person who is brave enough to raise an issue does not experience retaliation, and where the organization is not afraid to make an example of the “bad apple.” Harvey Weinstein did what he did as long as he did because he was an unstoppable commercial juggernaut – until he wasn’t. As powerful as yourHarvey may be, that power pales in comparison to the brand he trashes, the talent he drives away, and the blinding light of media attention. Your Harvey isn’t more important than your business—and your employees should know that.
