United States: The Higher They Are, The Harder You Fall

You don't need to be a cable news network, a Hollywood production company, a media mogul or a politician in order to feel the ripple effect from the recent wave of workplace sexual harassment claims.  While such harassment claims might not always make the nightly news, they are nothing new and they impact every sector of employment.  With the current flurry of high-profile harassment claims attracting media attention regardless of the industry, employers should prepare for an increase in claims.

It could be members of your C-suite who think they are immune from action due to their position within the company.  Or possibly the Chair of your Board of Directors who doesn't believe he or she can be replaced.  Maybe a high-level rainmaker upon whom your firm depends for its financial survival?  Power can make people believe they are invincible and immune from any consequences for their bad behavior.

But they're not. 

Businesses of all sizes and in all industries must provide safe, harassment-free workplaces for all of their employees.  But they sometimes find that more challenging when the alleged harasser is a senior-level executive, someone who makes a lot of money for the organization, or who the organization feels it cannot succeed without. 

The fact is that organizations cannot succeed with these individuals if they are allowed to engage in unchecked sexual harassment.  The following are some of the more dicey questions related to how to address harassment claims raised against people in positions of power.

Q:        When a high-level and powerful executive is accused of misconduct, it can be difficult to find someone within the organization to challenge that person.  Maybe subordinates fear retaliation; maybe they simply do not want to "rock the boat."  Human resource professionals share the same concerns if they try to take action.  So, how should a company address such complaints?

A:        First and foremost, the individual complaining should be assured that the company will address the concerns.  And then the company must follow through with that assurance.  Companies get into significant legal troubles by either dismissing the concerns (e.g., "boys will be boys") or failing to take action when concerns are raised. 

Next, the company must conduct a thorough investigation.  In investigations of high-level executives, the company should consider retaining an outside investigator experienced in conducting sexual harassment investigations and who will not feel the pressure, imagined or not, associated with investigating someone who is "key" to the organization.  Conducting sensitive investigations of this type requires expertise, and should not be entrusted to just any investigator.

Q:        What if the company "knows" that the executive probably did what he or she is accused of, but is unwilling to do anything about it due to the executive's position within the company?

A:        There is a difference between "knowing" and knowing If it is a "gut feeling," then the investigation will determine if it is valid or not.  Senior executives have rights too, and may be targets for spurious claims. 

That said, once the company knows that misconduct occurred, or that there is enough information to support a finding that something inappropriate occurred (even if not to the degree of the initial complaint)—the company should take action. The action an employer takes is different in every case.  But whatever that action is, it must be significant enough to send a message that, regardless of the person's status, the conduct is not acceptable and will not be tolerated.  Sometimes, depending on the severity of the misconduct, termination may be the only solution.  Other times, demotion may be appropriate or less-severe discipline may be warranted.  The bottom line, however, is that the company must take reasonable steps to assure that the harassment stops.

Q:        How do you terminate high-level executives, such as a CEO, when it relates to something of such a personal nature?  It's not as though they embezzled or committed fraud upon the company.  Besides, they likely will claim that any improper conduct was mutual or consensual.  How do you handle the case of "a lover scorned?"

A:        In some respects, these situations may be worse.  Those executives abused their positions of power to suit their very personal desires, and are acting against the very interests of the company.  Their conduct could very well cost their organizations more than any one individual executive is worth, both in potential adverse media attention and definitely in terms of potential litigation.

The case of the "lover scorned" or "consensual relationship gone awry" is always difficult.  Again, a well-executed and thorough investigation should get to the bottom of that.  Regardless, there is an underlying theme – when there is an inequality of status, there is a potential presumption that the person in the higher position could be using his or her power over the other individual.  This could vitiate any claim of mutuality.

Q:        Can't we just make sure he or she doesn't supervise people anymore?  Can't we just transfer or "pay off" the complaining person?

A:        But what happens the next time?  And the time after that?  Fool me once, shame on you.  Fool me twice, shame on me.  Assuming the company really knew nothing about the executive's misdeeds and that the complaint truly was the first inkling the company had about the conduct, then taking prompt action to do its best to ensure the conduct never happens again may suffice.  But if the company knows about the conduct and tries to "sweep it under the rug," the stakes go up exponentially.  First and most importantly, you are still going to expose your employees to an individual who has been shown to have engaged in inappropriate conduct.  Even if the alleged conduct affects different employees in a different part of the organization, they are still your employees.

From a liability perspective, your risk of liability (and the potential for significant liability) also goes up exponentially.

Q:        How can we ensure that our workforce knows we are open to, and in fact, encourage, employees to complain if they are subjected to inappropriate conduct, regardless of who engages in the conduct?

A:        Training is key.  Making sure that all employees are trained, not only on what types of conduct are inappropriate for the workplace, but also about how to complain, is key.

But what is even more important is a company's non-retaliation policy.  Employees must be told over and over again, and shown by the company's actions when a situation does arise, that no matter what, the company encourages all complaints and will not allow any retaliatory actions to be taken against someone who steps forward.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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