He Said/She Said-Making Informed Business Decisions in the #MeToo Era

The #MeToo Movement shows no signs of slowing. Now, more than any other time, companies are galvanized to prevent or, if prevention fails, to correct unlawful harassment where they find it.

You Are Doing Everything Right! Right?

You, Employer (including you, start-ups!), have your clear anti-harassment policy with definitions, examples, complaint, and investigative procedures. Your HR Department (which you also have, or, OK, a designated, knowledgeable HR person) is helping you enforce your policies equally, following the designated steps when one of your employees complains about sexual harassment in the workplace. You’ve read our blog, and you’ve provided tailored, interactive training to your employees, and you, Ms. or Mr. CEO, are fully, 100% committed to having a harassment-free workplace. And your employees know it.

It seems you are doing everything right.

But What If …

But, then, what do you do when you learn that your star VP salesman sexually harassed his new hire? Offered to provide that new employee with sales leads that would increase her commissions if only she would sleep with him, or seems to “casually” touch her multiple times a week…

Your HR Department informs you that your new hire complained, and you instruct HR to launch an investigation, as outlined in your excellent, well-drafted policy.

HR informs you that there are no texts, no documentary evidence, no witnesses to prove or disprove the grabbing, the touching, the quid pro quo commentary that I wrote about here. All you have is one employee’s account against the other. What do you do?

A Solution

Now is the time to hire an outside investigator.

While your HR department can conduct a harassment investigation, a private, specialized investigator or outside employment counsel might yield more accurate results.

We explained here that HR is often an employer’s best system for learning about and responding effectively to a claim of sexual harassment.

However, as attorney Amy Oppenheimer explained to the L.A. Times here, “HR’s job is to protect the company, but HR needs to understand that uncovering the truth as soon as possible and dealing with it head on does protect the company. In the short term you can say, ‘This looks terrible and we can deep-six it. But that’s not what’s best for the company.’”

What’s best for the company is following the law, of course.

Shoot First—Ask Questions Later?

Oppenheimer believes that the #MeToo movement has led to a “shoot-first-ask-questions-later” workplace atmosphere.

That’s…not wrong.

But, let’s remember, there are two types of sexual harassment—quid pro quo (extensively discussed here) and the creation of a hostile work environment.

And, remembering lessons learned in Sexual Harassment 101, sexually charged comments, “guy talk” or banter, offensive jokes based on gender, or other such conduct made by executives, managers, an employee, or supervisor to another employee may subject an employer to liability under Title VII of the Civil Rights Act of 1964 (“Title VII”) if :

(1) the comments themselves are based on sex (or race or age or a disability), and

(2) the comments are severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive, and

(3) the employee herself or himself considers it to be offensive and abusive.

So, is one unfortunate choice of words enough to rise to the level of sexual harassment? It’s unlikely, but it might—remember the ad-man who told a female employee she’d be “raped into submission”?

Is there a gray area? Yes, of course there is.

Making A Business Decision—It’s All Up To You …

Especially in this fraught climate, an experienced investigator (counsel included) can help your business make critical credibility determinations about the above, obtain whatever corroboration is out there supporting or undermining each party’s side, and then, as Oppenheimer notes, advise you based on her/his interview notes, impressions, and all of the information and data that counsel can gather.

What you, Employer, do with that information is up to you. But we encourage you to take every complaint seriously and make decisions based on review of thoroughly investigated facts and the advice of well-trained professionals.