Sexual Harassment Scandals: Time for Employer Self-Examination

By Lehr Middlebrooks Vreeland & Thompson, P.C.

November 17, 2017

Notorious sexual harassment by rich and powerful men in the entertainment industry has brought the nation's focus on the broader scope of sexual harassment in general. For example, according to a 2015 Cosmopolitan survey, one third of all women between ages 18 and 34 have been the recipients of sexual harassment. Eighty-one percent of all sexual harassment has been verbal, forty-four percent has included unwelcome touching or advances, and twenty-five percent involved lewd emails or texts. The reason why these percentages far exceed 100% is because harassers engage in multiple approaches. Further, it is a false narrative that the victims of such behavior are weak and uneducated: 93% of those who were recipients of sexual harassment had some college education.

The survey also revealed that 75% of those who are harassed were harassed by male co-workers, 49% by male clients or customers, and 38% by male managers. Ten percent were harassed by female co-workers. On an industry basis, the highest percentage of harassment occurs in retail (42%) while the lowest percent is in medical and health care (21%). Seventy-one percent of those who were recipients of harassment did not report the behavior.

Only 29% actually reported the harassment? It is inherently difficult for a recipient to report harassment. Perceptions from the recipient include: "Will I be believed?" "Will I be told I brought the incident on myself?" "Will I be told that this is just the way things are?" "Won't the company choose to retain a powerful or profitable harasser over me?" "Will reporting it damage my career?" "Will people think I am raising a complaint because of a desire for money?" "Will I be fired?"

How can a culture be sustained where individuals feel comfortable reporting the behavior? Workplace harassment policies and anti-harassment training may be enough to help employers defend sexual harassment claims, but that alone may not be enough to prevent the behavior from occurring. These are our suggestions for employers to do more than what typically may be legally required to prevent or respond to workplace harassment:

1. Have the most senior leaders (President, CEO, CFO, COO) in the company promote, introduce, and attend any anti-harassment or equal opportunity training. These individuals should plan to actively participate in and ask questions during the training. NPR had to admit that its recently-fired news editor and alleged harasser wasn't required to complete the "required" sexual harassment training.

2. Explicitly state in writing to those in leadership positions, including first line supervisors, managers, directors and of course executives, what the organization defines as inappropriate behavior, which includes their behavior toward anyone they come into contact with on behalf of the organization, including employees, customers, vendors and contractors. Organizations must expect their leaders to exceed standards, not merely meet them, in this regard. It is important that supervisors, managers, and executives know that failure to set a professional tone at the top may ultimately result in termination, regardless of performance or profitability.

3. Make it clear to employees that the policies which prohibit harassment, discrimination and retaliation require employees to report the behavior even if those who report the behavior are not the targets. A common thread in a number of the recent notorious sexual harassment allegations is that others in the organization knew of the behavior, but did not act. They may have feared retaliation or thought reporting it would be ineffective. Make it clear that it is an individual's obligation to report possible policy violations. Further, supervisors who turn a blind eye to such actions should be informed that the Organization may treat willful ignorance as a punishable or terminable infraction.

4. Provide for options to report harassment to a third party, whether to a hotline or other resource. However, ensure that this third party is familiar with its role to take in harassment reports and relay them promptly (within 24 hours). We recently heard about harassment allegations where the victims tried to call such a third party hotline but were told by the third party that it handled complaints of financial or ethical improprieties only.

5. Be sure the investigation is conducted by a knowledgeable individual or individuals who would not be intimidated or concerned about vulnerability if they investigate someone in a leadership position. This is where an independent third party investigation may be appropriate, or, for a multi-location employer, a representative from outside the location where the harassment occurred.

6. Make it clear that HR and investigators enjoy autonomy and the full support of the Organization, and that the Organization's top priority is people, not profits.

7. If the outcome of an investigation is a "close call" where the harasser is retained rather than terminated, make sure there are economic and other consequences for the alleged harasser. Also, ensure the alleged harasser is separated from the victim, without negative consequence for the victim.

8. Invest in training that doesn't stink. Live, in-house training with case studies, small groups, and role-playing takes more time than a lunch and learn session. But it's a lot more effective than a recorded video that employees can sleep or sleepwalk through. (In the same story where it admitted that its top news editor hadn't attended training, NPR also played an audio clip of that training. Listening to paint dry would have been just as riveting).

9. Include training about the subtlety of potentially harassing behavior, sometimes referred to as "micro-aggression," such comments of a stereotyping nature.

If employers do not perform a critical self-assessment about the sufficiency of their approach to stopping and handling sexual and all harassment, employers should expect legislation to address that issue. For example, New York is considering potential legislation that would nullify confidentiality provisions of separation agreements when the confidentiality may involve a claim of harassment, discrimination, retaliation or failure to pay proper wages. If there is effective employer voluntary action, there may not be sufficient support for legislative action.