Workplace ethics and behavior: how to manage sexual misconduct

The veritable mountain of accusations unleashed by the Harvey Weinstein affair have put HR departments on high alert. Here's how not to mishandle this issue

Today’s firing of Matt Lauer and Garrison Keillor from Minnesota Public Radio are igniting discussions in workplaces across the United States. As allegations of sexual harassment come out against both high profile and regular employees, companies are being forced to look at some real questions when it comes to discipline and termination. Every sector of the enterprise – and that includes Shared Services operations – needs to be on the alert and know how to take immediate steps should this issue arise. The key thing is: involve HR immediately.

The #metoo movement is growing daily, as high-profile celebrities, politicians, and leaders of industry get called out by alleged victims.  It’s critically important for employers to react, but not overreact, to the movement.  When confronted with a harassment claim, an employer should not rush to judgment, nor should an employer cave amidst the weight of numerous complainants.  The key was and still is to conduct a very prompt, thorough investigation that reaches solid conclusions based on the facts available. 

The movement, by its very nature, is one of empowerment.

The tabloids seem to suggest that employers caught up in the #metoo controversy are rushing to judgment, simply firing these high-profile figures before hearing them out.  This is undoubtedly more fact than fiction—well-informed employers conduct comprehensive investigations prior to reaching any conclusion,” Doran says.

“Given the extraordinarily short period of time between the complaint and the termination, the Matt Lauer situation may be an exception to the rule that an employer should conduct a comprehensive investigation before taking disciplinary action.  But every rule has its exceptions.  In this case, while we are speculating, it is likely that Lauer’s accuser presented the network with undeniable evidence of misconduct, rendering any further investigation unnecessary.  In this day of emailing and texting, this will often be the case,” Doran says.

“The #metoo movement is not limited to high-profile names in the news.  The movement, by its very nature, is one of empowerment.  Alleged victims of harassment now see an environment conducive to calling out an alleged harasser and less receptive to victim-shaming.  This empowerment will invariably work itself into most places of employment,” Doran says.

There is a perverse motivation for non-victims to falsely claim they are victims to either to obtain compensation or to retaliate against a boss or co-worker for some otherwise-lawful slight

“The #metoo movement is making an important and much-needed statement.  Victims of sexual harassment must feel free to come forward in an environment free from ostracism or retribution.  The movement has given alleged victims a voice and the moral high ground to call out alleged harassers.  But as with any movement, #metoo presents certain real risks that require employer vigilance.  For example, given the swift and near-blinding discipline imposed on many of these celebrities in the news, there is a perverse motivation for non-victims to falsely claim they are victims to either to obtain compensation or to retaliate against a boss or co-worker for some otherwise-lawful slight. 

Likewise, there is some indication that the movement may dramatically lower the bar for what is considered sexual harassment beyond what the law provides.  For example, some complaints involve a boss who was or is a screamer, or just plain mean. 

Our anti-harassment laws were never intended to become general workplace civility codes, but there is some risk that the laws will morph into precisely that,” Doran says.

About the author

John Alan Doran is a partner at the law firm Sherman & Howard and has over 25 years of experience counseling and successfully representing employers in all facets of labor and employment law matters. He regularly represents employers in mass employment, wage/hour class and collective action litigation, as well as employment discrimination, public accommodations discrimination, and wrongful termination litigation. He says companies shouldn’t be so quick to fire an employee based on allegations alone.