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Harassment Concerns Test Employers

Sexual harassment issues in the workplace have exploded into a new and nationwide level of awareness that employers cannot afford to ignore.

At this point it’s not necessary to repeat the famous names in show business, politics and the news media that have seen their reputations tarnished, in some cases to the point of ending their careers.

The number of women who leveled these charges is large, but even more women have experienced sexual harassment ranging from annoying to traumatizing who rarely report it.

For those of you men reading this who are tempted to think these claims are overblown, sit down with a woman you know and trust, ask her about her experience, refrain from speaking and just listen. In most cases you are likely to be shocked, if not by the severity, then by the sheer number of men who routinely misbehave in this manner.

Of course, sometimes there are false accusations, and sometimes women have harassed men. The reality is that these cases are rare.

In addition, some women experienced incidents that were few and far between, or which they regarded as relatively minor, like the telling of a dirty joke. But from what we are learning, in far too many situations men have harassed women severely and pervasively, and the burgeoning knowledge of that pervasiveness is changing the legal liability employers now bear.

Of course, most companies do not see misbehavior rising to the level of a Harvey Weinstein, but there are “Harveys” in almost every industry.

“Leaders in general and men in particular must do more than avoid what is wrong, and behavior is wrong long before it rises to the level of what has been reported in the high-profile cases,” says Jonathan A. Segal, an attorney with the law firm of Duane Morris LLP.

“By their words and their actions, leaders must make the organization’s anti-harassment policy a true reflection of corporate culture,” Segal declares.

How Employers Should Respond

Although it is vital for you to establish and take appropriate steps for a formal complaint investigation, in the new environment by the time the complaint is filed it may be too late.

“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,” note attorneys Barbara Hoey and Mark Konkel of the Kelley Drye & Warren law firm.

“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” they add.

The commitment to stop harassment must begin at the very top of the organization. But what if the abuser is the corporate leader, or a “rainmaker” sales executive? You must build strong enough employee protections into your anti-harassment policies and procedures, say Hoey and Konkel.

The more power you have, the more is expected of you. Those who abuse their power must face prompt corrective action. When bad behavior happens, there must be consequences, Segal states. Human resources has a key role in helping to remove from workplaces those who abuse their power and assault the dignity of others, he stresses.

“In some cases, this will mean terminating the rainmaker. But if you ignore, or worse yet protect, him, a jury can and will take away all the rain. Plus, values matter,” says Segal.

Every organization’s human resources department plays a critical role in the battle against sexual harassment, and it should be empowered to deal with abusers in the highest ranks of management, he adds. However, he realizes that in the real world this cannot always be the case.

“Publicly, HR professionals must stand up to harassment and implement holistic programs to prevent it from occurring. But not all preventive efforts will be successful,” Segal admits.

Employees at all levels – especially men – must be impressed with the fact that they are the first line of defense against abuse. “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,” note Hoey and Konkel.

“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.”

Keep in mind that not every act of harassment is a termination offense, says Robin Shea, partner in the law firm of Constangy Brooks Smith & Prophete.

“The bawdy joke, or the clumsy ‘compliment’ that makes reasonable women cringe, may be corrected with counseling and guidance about how to behave in the future, coupled with a low-level disciplinary warning,” she advises.

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