Decades-Old Misconduct May Give Rise to New Claims of Harassment

Is it fair to use today’s standards to judge incidents that happened many years ago?

Allen Smith, J.D. By Allen Smith, J.D. December 7, 2017
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​Just as some recent harassment complaints against celebrities and politicians are based on conduct that goes back many years, your employees may be coming forward with their own accounts of alleged misconduct from decades ago.

Some misconduct is beyond the pale—the allegations against Louis C.K. and Harvey Weinstein come to mind. But in other instances, what happened in the past may not have been as disturbing back then as it would be now, raising the question of whether employees should be judged for long-past actions by today's standards, according to Sharon Sellers, SHRM-SCP, president of SLS Consulting LLC in Charleston, S.C.

Social Mores Change

With each decade, social mores change, said Sellers, who noted that in the late 1980s she had to go to the company's maintenance departments and get workers to take down their Playboy pin-up calendars.

"Prior to then, that was totally acceptable," she said. "Did even I—an HR director—tell an inappropriate joke at work back then? Of course I did. Did I ignore remarks in the 1980s and 1990s that today would [be] cause for dismissal? Yes."

But she cautioned, "The current climate is starting to have the appearance of a McCarthyism witch hunt." If an employee makes allegations about egregious behavior, put the alleged harasser on leave while you investigate, Sellers recommended. "While every employee has a right to come forward and lodge a complaint, every alleged harasser is also due the benefit of an objective investigation," she said.

Sellers said that HR should be ready to respond to complaints of past misconduct.

"Are we willing to retain an employee if there is proof available that he or she committed inappropriate sexual behavior decades ago?" she asked. The time for suing in a court of law over the allegations may have expired and some of the evidence against the alleged harasser may have disappeared with the passage of time, but the question remains: Did the alleged harasser violate the employer's policies?

"I don't believe that there is one answer for all industries and all situations," she said. "However, HR should take time to consider this now and have some preliminary plans laid out prior to having to deal with it … when allegations are made and objectivity may be clouded by emotions."

[SHRM members-only HR Q&A: What are the different types of sexual harassment?]

Review Old Files?

One tough question is whether the employer should review its old files even if new allegations have not emerged, said Ingrid Fredeen, J.D., vice president of Navex Engage, the online learning content service for Navex Global in Portland, Ore. An employer might unearth complaints of old misconduct that weren't adequately addressed. It is good to be knowledgeable about decisions and actions that have occurred in the past, she said.

If for no other reason, knowledge about prior corrective actions can help ensure fairness and consistency as you deal with new situations. But on a deeper level, HR can learn much from how situations were handled — or mishandled — and how those decisions continued to impact employees after the situation was officially resolved, she said.

"A fresh look at old misconduct may force employers to make difficult decisions about how the matter was originally handled or make improvements in how they plan to handle future incidents of misconduct," she said. As HR professionals review old events, they should consider them in context and examine them not from a pure legal defensibility angle but rather from a perspective of the organization's culture and a commitment to a respectful environment, according to Fredeen.

She recommended that HR ask:

  • Did the original handling of the situation resolve the problem, or has the problem persisted?
  • How proactive is the company right now? Is it really trying to understand the current state of the culture and how employees are feeling about their work environment?
  • Was the initial decision to not address the misconduct at all and, if so, was that decision the right one?
  • Have old wounds healed? If not, is that due to the failure to act properly when a complaint was first made?

Remedial Measures

"I always look at remedial measures on a spectrum, usually 1 to 10, with 10 being termination and 1 being some very minor remedial measure," said Patti Perez, vice president of workplace strategy with Emtrain in San Francisco. If the original allegation was about a relatively mild misbehavior and the record indicates that the person has behaved professionally, respectfully and maturely since that time, the remedial measure would probably be relatively mild—maybe a talk with the person to make sure he or she understands the issue, she said.

"If, on the other hand, the behavior was more severe and/or it has continued, then the fact that it started many decades ago, and has continued, is even greater proof that a very severe remedial action, maybe even termination, is warranted," Perez stated.

 

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