A Rush to Judgment?

Are companies and politicians reacting too quickly to sexual harassment allegations?

Dana Wilkie By Dana Wilkie December 1, 2017
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​It was a little more than one day after sexual harassment allegations surfaced against Today show host Matt Lauer that NBC announced that it had fired the leading anchor.

And it was mere hours after sexual harassment allegations came to light against Rep. John Conyers Jr., D-Michigan, that House leaders were calling for his resignation, even before the House Ethics Committee could look into the charges.

As reports of sexual harassment ensnare some of the nation's most high-profile men—in Hollywood, in Congress and at big-name companies—corporate executives and leading political figures seem in a hurry to conduct damage control by denouncing or firing the alleged wrongdoers.

Are employers moving faster to resolve sexual harassment claims, in hopes of tamping down bad publicity? Is this a rush to judgment?

"In the past, I think HR has erred on the side of protecting high-level executives and professionals even in the face of serious and credible allegations.  And there is good research suggesting that HR has often discouraged complainants who had legitimate grievances.  HR is certainly in a tough position and should investigate charges," said Lauren Edelman, professor of law and sociology at the University of California at Berkeley.  If further investigation shows the person was wrongfully accused, he or she may have a good case for wrongful termination or possibly defamation, she added. "But in my view, if an investigation reveals credible evidence of harassment, it is appropriate to fire the harasser."

High-Profile Figures Under Fire

Rep. Nancy Pelosi of California, the House Democratic leader, moved swiftly Nov. 28 to call for an investigation into Conyers, the House's longest-serving lawmaker, and said he should resign. So did House Speaker Paul Ryan, R-Wisconsin.

Conyers, who has represented parts of the Detroit area in the House since 1965, confirmed the settlement of a wrongful termination complaint in 2015 from a staff member who had accused him of sexual harassment. But he denied that the staff member was fired for refusing to have sex with him.

As for Lauer, Fortune magazine reported that "the speed at which Today show host Matt Lauer was fired was stunning—not only because of his long tenure at NBC, but because of his status as one of the network's most prominent faces."

But the magazine reported that NBC officials were worried that allegations against the anchor could lead to a public relations disaster and decided to act proactively. Two reporters at Variety confirmed that they had been working on a story about sexual harassment allegations against Lauer for more than two months. And Brian Stelter of CNN's Reliable Sources said The New York Times was nearing publication on one as well. NBC management was reportedly aware that both stories were close to being published.

NBC's action against Lauer "was not a swift response, it just looked like one," said David Lewis, who for two decades has trained workers about sexual harassment as president of OperationsInc, an HR consulting firm in Norwalk, Conn. But, he added, "there is absolutely liability if you cannot show that the company was consistent in how they handled a matter or investigation, as well as being thorough in their investigation."

Since The New York Times published allegations of sexual harassment and assault against Hollywood mogul Harvey Weinstein in October, multiple men in Hollywood, politics and media have faced allegations ranging from sexual misconduct to rape. Here's a list of some of the people who have been accused. A large number of sexual assault and harassment survivors are sharing their stories online by posting on social media with #metoo.

"There is definitely a significant potential for mischief from the #metoo movement despite its laudable and highly effective advances," said John Alan Doran, a partner at Sherman & Howard in Scottsdale, Ariz. "The fear of bearing the brunt of a #metoo incident may very well prompt an employer to shoot first and ask questions never. The path of least resistance for an employer in the current climate is simply to knee-jerk fire the alleged harasser, or … automatically take the complainant's side of the story as true and discipline accordingly."

And that haste, he said, could have consequences.

"In the face of the #metoo movement, delay appears to be as damning as inaction or approval," he said. "This means employers have to act with extraordinary haste in the face of harassment allegations or face public scorn for foot-dragging. But both HR and the legal team can and should, in most cases, suggest a more measured and equally defensible approach—suspension pending investigation—bearing in mind that long, drawn-out investigations could result in the same public scorn. In many states an employer could, conceivably, face liability to the accused for an unduly hasty discharge, so the employer has to walk a very flimsy tightrope when deciding what its immediate reaction will be to harassment allegations."

Carolyn Rashby, special counsel at the San Francisco-based Miller Law Group, noted that there have been cases in which alleged harassers who were immediately terminated without investigation successfully claimed they were victims of sex stereotyping.

"Namely, the employer assumes that the complaint from a female employee must be valid because, for example, [the company believes that] men have a strong propensity to engage in sexual harassment," she said. "So companies need to tread carefully here. If they're not capable of conducting the investigation with internal resources, either due to lack of experience or concerns about impartiality, there are many qualified outside investigators who can step in quickly."

[SHRM members-only toolkit: Introduction to the Human Resources Discipline of Ethics and Corporate Social Responsibility and Sustainability]

When Is Swift Discipline Appropriate?

Debra Katz, a founding partner of Washington, D.C.-based Katz, Marshall & Banks, LLP, said she's not troubled that company executives and politicians are reacting swiftly to sexual harassment allegations.

"What's troubling is that companies have been on notice for years and in some cases decades about the egregious abuses carried out by men in positions of power and failed to act," said Katz, who has litigated employment discrimination, civil rights and whistleblower protection cases for over 30 years. "We are experiencing a sea change. In these high-profile cases we are hearing about, companies are not attacking and attempting to discredit individuals who come forward and report sexual harassment, but are acting decisively in the face of credible evidence of sexual harassment and other abuse. This is actually what companies should have been doing all along."

Lorene D. Park, an attorney and senior employment law analyst with Wolters Kluwer Legal & Regulatory based in Riverwoods, Ill., acknowledged that the public doesn't know everything that went into NBC's decision, for instance, to so quickly fire Lauer. And she noted that because employment is "at-will" at most private companies, workers can be fired "at any time for any reason, or no reason at all."

"However, employers have to be careful that the termination does not violate an employment contract," she said. "For example, a written employment contract or a collective bargaining agreement may require progressive discipline or termination only 'for cause.' Employers also have to be careful that the termination does not violate the requirements of state and federal law. It would violate anti-discrimination laws to give different levels of discipline based on race, gender or other protected characteristics. For instance, you can't fire all male sexual harassers but let female sexual harassers off with a warning."

If there's no question that sexual harassment occurred, she said, and if the discipline is even-handed—meaning all harassers receive the same level of discipline for the same misconduct—there is less risk of liability in an immediate termination "than in keeping the harasser around to potentially harass again."

Added Edelman: "A company is not a court of law where the standard is a preponderance of the evidence for a civil offense. If a company has credible evidence of harassment and has investigated the allegations, then swift disciplinary action is appropriate."

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