The Harvey Weinstein/Bill O’Reilly/Matt Lauer Effect
Michael G. Trachtman |
What to Expect from Women – And Men – And What To Do About It
Thanks to the Harvey Weinsteins, the Bill O’Reillys, the Matt Lauers (the Charlie Roses, the Al Frankens…) of the world, we are in the midst of sexual harassment culture shift, and the effect on the workplace will be complicated, confusing, and risky.
What To Expect: More Bona Fide Claims… And a Bandwagon Effect
Recent surveys have revealed the plethora of women who have experienced sexual harassment in the workplace – by some accounts, 40% or more.
In the past, fear of retaliation, shame, and the risk of stigmatization has dissuaded many, some say most women from speaking up. But as more and more women in high-profile cases have come forward, had their claims validated, and been lauded for their courage, women in workplaces everywhere have been encouraged and emboldened to break their silence. The inevitable result, which is already evident, is that many employers will face a growing wave of sexual harassment claims – some arising from past conduct, some arising from present conduct.
Past is usually prologue and, based on history, that wave will not peak for some time: when the media begins to publicize the fact that people who sue for X (an automobile defect, a pharmaceutical side effect … ) are obtaining substantial damage awards, lots of other people will want to jump on that bandwagon and sue for X as well. Some will bring real claims, some will bring questionable claims, and, inevitably, some will bring bogus claims in the hope of obtaining a nuisance settlement.
How Employers Must Prepare For And Respond To A Sexual Harassment Claim
Here’s the problem with sexual harassment claims… Employers can be held liable even if they saw no warning signs, and even they did not know it was happening. But there is a way to minimize that exposure – it takes the right kind of preparation, and the right kind of response should a claim arise. As the saying goes, don’t try this at home. This is much easier said than done, and you will need guidance.
In terms or preparation, an employer must have done at least the following:
- It must have published and consistently respected and enforced a proper anti-harassment policy. Consider very seriously a “workplace romantic relationships” policy;
- It must have published and consistently utilized and respected a written, properly drafted complaint procedure that enables and encourages employees to report harassment without fear of retaliation;
- It must have periodically and professionally trained its executives, managers and supervisors on how to spot and prevent sexual harassment, and what they must do respecting the protection and enforcement of their employees’ legal rights.
In terms of response to a harassment complaint, an employer must do at least the following:
- It must immediately take steps to protect the accuser from the prospect of further harm, including retaliation;
- It must commence a legally complaint investigation of the complaint;
- It must take pains to respect the legal rights of both the accused and the accuser during and after the investigation;
- It must take proper action, as guided by counsel, based on the results of the investigation.
The “She Said/He Said” Conundrum
It all sounds do-able, but here’s the real-world problem.
The substantial majority of sexual harassment claims boil down to a “she said he did it/he said it never happened” battle. Sometimes, there is witness, email or other proof. But usually, sexual harassment is pursued in private, with caution, and there is no reliable way to determine if the accused is lying to avoid the obvious consequences, or if the accuser is lying in order to seek revenge for a personal or business affront, or to extract a quick settlement.
The “she said/he said” scenario makes it very difficult for employers, and my view, some of which is explained below, is that these difficulties will get much worse before (if ever) they get better.
The “Damned If You Do, and Damned If You Don’t” Conundrum
Even if they cannot determine who is telling the truth, employers, acting on the basis of legal counsel, will often act as if the female accuser’s version of the facts is closer to the truth than the male accused’s version of the facts – this is viewed as the safer course since, if the accuser is ultimately able to prove that she told the truth, and if the employer did not act on that basis and take steps to prevent and remediate the claimed harassment, the employer will soon find itself mired in litigation hell. It’s sort of like a doctor who thinks a patient might have a disease but cannot verify it, and just in case the doctor prescribes a drug meant to treat the disease, even though the drug is expensive and inconvenient. Better safe than sorry.
But what if the drug has serious, potential side effects? Should the doctor, unsure of the diagnosis, still prescribe the drug when it may do more harm than good, when the line between safe and sorry is blurry and uncertain?
In a “she said/he said” sexual harassment claim, the “drug” of choice – the better safe than sorry option — is usually something like this … The male accused is separated from the female accuser by reassignment or otherwise; the employer issues a warning to the male accused along the lines of, “we cannot verify what happened, but we wish to remind you that the following workplace conduct is prohibited…”; the employer issues a follow-up to the female accuser along the lines of, “we cannot verify what happened, but we wish you to know that we take sexual harassment very seriously and as a result we are implementing the following ….”; new sexual harassment policies are distributed and, even, mandatory training is implemented.
The upshot is the clear implication that the employer believes that the male accused did something he should not have done. Why else would the employer do what it did in response to the female accuser’s sexual harassment allegation? The rumor mill takes over. Effectively, the male accused’s reputation and, possibly, his career, is ruined. Maybe, deservedly so. But, maybe not.
As sexual harassment claims increase, the attorneys who defend against these claims, seeking to rise above the pack, will develop new strategies to defend their clients against these kinds of consequences in a “she said/he said” claim. And I believe I know what the centerpiece of those strategies will be: the threat or the filing of a defamation claim by the male accused against not only the female accuser, but also the employer.
An individual is defamed if someone has through words or actions damaged the individual’s reputation—it is often said that a person’s reputation is their most valuable asset, and judges and juries often agree, in the form of significant damage awards. Defamation claims have always been an option any time allegations of workplace misconduct arise, but as the volume of sexual harassment claims increase, I believe this will become a much more frequent and feared tactic in the effort to dissuade employers facing a “she said/he said” situation from even implicitly pointing a finger at the male accuser.
This will put employers facing a “she said/he said” claim in a very disconcerting “damned if you do/damned if you don’t” pickle. The female accuser will demand that the employer do what employers are supposed to do when sexual harassment occurs and, if the employer fails to do so, it may face the prospect of expensive litigation. But the male accused will tell the employer that there’s no proof anything untoward occurred, and if the employer takes those actions, the male accused will respond through a defamation lawsuit.
So, What’s the Solution?
Other than designing and implementing the preparation/response protocols detailed above, and revisiting your insurance coverages, there is no “one size fits all” solution. Depending on the reasonableness of the accuser and the accused, it is sometimes possible to diplomatically navigate the straits between the interests of each in an acceptable way. But this much is and will continue to be tried and true: prevention is much easier and cheaper than cure; and ad-libbing on the fly and asking for advice later, as opposed to seeking real-time guidance as events unfold and develop, is a recipe for disaster.
Let us know if we can help.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman, P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at email@example.com. See www.powelltrachtman.com for more information.