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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.