Published November 30, 2017 by Andrea Downing
Matt Lauer, Garrison Keillor, Charlie Rose, Roger Ailes, Kevin Spacey, Mark Halperin: all major media figures who have lost their high-profile, high-paying jobs due to allegations of sexual misconduct at work. Starting with Harvey Weinstein in October, the behavior of Hollywood moguls, Washington politicians and media personalities has shocked the public and catapulted the issue of sexual harassment to the forefront. While all this happens on the national stage, it’s forcing employers and employees in offices nationwide to examine their own behavior and policies.
All news radio WTOP turned to Wade, Grimes, Friedman, Leischner and Meinken employment law attorney Andrea Downing for answers about misconduct in the workplace. She says there needs to be new and updated procedures to stop such behavior from taking place. “The one-hour sexual harassment video from the 80s shown when you’re hired isn’t enough anymore,” says Downing. “Employers need to implement regular fresh and interactive training to educate people on what is and is not appropriate in the workplace and the consequences of being inappropriate in the workplace.”
“Everyone will breathe easier if a known harasser no matter how valuable is thrown out instead of accommodated,” adds Downing. Listen to her interview here:
In addition, Downing answers frequently asked questions about sexual harassment in the workplace:
How can employers get out ahead of sexual harassment problems?
- The one-hour sexual harassment video from the 80s shown at hire isn’t enough any more. Regular, fresh, and interactive training should be implemented.
- Investigate complaints with an eye toward protecting the company from liability and bad publicity, not just discrediting a complaint by any legal loophole possible.
- Foster an environment where emotional intelligence, accountability, and consistency prevail. Businesses that actively implement these values seriously have less problems than those that only try to make corrections after the fact.
What does Matt Lauer’s termination show us?
- As the shock shown by Lauer’s colleagues demonstrates, a sexual harasser can be someone coworkers or employers would not expect.
- Businesses are undergoing a cultural shift from maintaining high value assets no matter the cost to protecting the business from liability and bad publicity.
- People are becoming more aware of what is not appropriate workplace conduct and are becoming less afraid to act upon it.
Is there a distinction between appropriate and illegal workplace conduct?
- Yes. Many things that are unethical, immoral, or gauche are not illegal in the workplace because federal law does not impose a general conduct code on businesses and employees. It’s not illegal to be a jerk (although that’s not a great defense). Key questions to ask are: Is the conduct constant? Is it severe? Is it unwanted? Is it targeted toward one group of individuals or one individual because of that person’s innate characteristics?
Won’t these sorts of things encourage copycats? Or, what if someone is wrongfully accused of sexual harassment?
- It’s not terribly difficult to show that no merit whatsoever exists to a complaint. If someone is truly wrongfully accused, some protections, like defamation, exist. Key to that inquiry will be the accused’s ability to show the falsity of the accusations and to show the damages suffered because of those accusations. However, if there is truth to an accusation, but the accusation does not rise to illegal conduct, employers should be careful in taking action against an accuser – that could have a chilling effect on future (founded) complaints and could be illegal retaliation.
These are so often he-said/she-said situations. How do you figure out who’s telling the truth?
- Harassers don’t like to have witnesses because of the risk and exposure. So, that’s not dispositive. Does the victim have notes on the incidents? Did the victim complain to family or friends at the time? Did anyone at work notice the victim upset at work at the time? Showing discomfort at the thought of working with/for the harasser? Did the victim start experiencing medical problems at or around the same time? What do security cameras show? Are there differences in the way the harasser treats the victim versus other people? Does the harasser make calls on her personal phone to only the victim? Does the harasser ask the victim to lunch/drinks/dinner/work late more than she asks other people?
Between Hollywood and Washington, this seems so prevalent. How are typical businesses supposed to continue if they’re busy with a number of claims, or losing people? Will this require a rewriting of the rules?
- Rules should be fresh in employees’ minds. But, businesses shouldn’t be afraid that the number of harassment claims against them will rise so much that they will go bankrupt. If that’s really the case, then they need to look at their own practices. Rather, businesses should treat discrimination or harassment complaints as an opportunity to improve their efficiency. Everyone will breathe easier and work better if a known (albeit valuable) harasser is thrown out instead of accommodated.
- And, the processes that are in place for these sorts of cases favor employers. Employees have to jump through hoops and wait and wait to get to Court. Once they’re there, it’s extremely difficult to conduct discovery, let alone prevail on a case, without a lawyer. And, an employee’s remedies for discrimination or retaliation often function as after the fact remedies. If someone complains of discrimination, an employer should take it seriously and investigate it. But, there is not an automatic or unassailable protection from an employer’s action just because someone has complained of harassment. With that being said, employers should still proceed cautiously as a jury in this area will not let bad conduct go unpunished.