Preventing Sex Discrimination: The Case for Implementing More Guard Rails

One of the hottest topics today is the accusations of some form of sex discrimination – which includes sexual harassment and sexual assault – related to employment. From the entertainment industry to media organizations, professional services firms, restaurants, venture capital firms, legislative bodies, and many others, the problem is widespread – but it is not new. It is just an age-old story with new players.

Lawyers are brought in after the allegations are made. Those burning allegations must be dealt with very quickly under the law. The intent is to contain the fire by creating legal closure which, in most cases, involves settling the subject claim(s) through release agreements that contain confidentiality agreements and non-disparagement clauses. With respect to  advice to prevent sexual harassment in the future, lawyers often recommend a myriad of actions including  installing new leaders, overhauling management, conducing outside legal reviews into unreported claims, creating employee advisory committees, updating sexual harassment policies, offering  more employee services, and providing more training and education to employees. Depending on whether the ultimate decision maker sincerely “walks this talk,” this all could be simple symbolic noise.

Setting aside the allegations and rumored settlements, the common threads are as follows:

• The gentlemen all occupy positions where the power imbalance between them and a possible victim is great.
• The industries they represent provide a great incentive to look the other way given that there are millions and billions at stake.
• Victims most likely stay silent fearing their careers will be harmed if they speak out and the scorn sword is used.
• Most likely, accusations will be made against them of political and financial motivations.
• Emails/texts will be used to show acquiescence where they will claim that they were playing defense and trying to proceed carefully.
• Careers could be derailed through retaliation.
• Bystanders, whether HR directors, CEOs, or boards, may feel constrained to follow symbolic compliance procedures because of the “gold” at issue.
• Once settled, lawyers often prepare air-tight agreements which will include confidentiality clauses and non-disparagement clauses, require plaintiffs to sign affidavits averring that nothing happened, and be required to destroy all evidence.
• Or, the alleged perpetrator will offer to settle the matter personally so the employer does not have to disclose it on its financials.

This does not just happen to professional women. Actresses, newscasters, marketing assistants, waitresses, hotel staff, and agricultural workers are particularly vulnerable. Only seven percent of working American women are employed in restaurants, but they bring one third of the sexual harassment suits to the EEOC.  Reliance on low wages and tips makes it very hard to stand up to harassing bosses and customers.

If you look at sexual harassment as everyone’s problem because it affects your mom, your wife and your daughter (or even your father, husband, or son), how do you create the workplace circumstances where it is less likely to happen? Here are a few guard rails that are worth considering:

1. HR directors should have the ability to place anyone on an unpaid leave while a complaint is investigated. That would include the CEO.  If a mere employee can stop the production line because of quality issues, an HR director should be able to preserve the culture from predators who prey on young women.
2. The legal standard is what a reasonable person would find hostile or abusive. Should the individual board member, CEO, or governing body consider applying their own decency and moral codes also?  Should each of them apply their own personal integrity standard and answer the question: What would my answer be if this was my mom/wife/daughter? How depressed, angry, and humiliated would my loved one be if it happened to them? How would I help them make sense of it?
3. Setting aside the law, should more effort be put into the calculations of costs and benefits? Should the decider view it as a business calculation and stand by the perpetrator despite the harassment dispute and consider such dispute mere collateral damage that can be bought off through a release? It is far easier to take the high road and terminate an alleged perpetrator when the alleged perpetrator’s value is becoming diminished (i.e., movies poorly performing, shift in video strategy, pursuit of business opportunity) versus when much “gold” is at stake.How much weight should be given to the costs? There are legal and reputational risks, poor staff morale, and higher staff turnover. Failure to deal with harassment can be very bad for business; Harvey Weinstein’s company could be shut down. “A” player female employees will move to rivals.  Markets could also get around to punishing companies. Studies show that employees blame the company when perpetrators are not punished. Is the company trading short-term gains for long-term suffering? 
4. Consideration should be given to placing more women on Boards. Boards should have leverage. Key player employment agreements should contain harsh harassment clauses or a Code of Conduct that severely punish bad behavior monetarily and/or with immediate termination due to breach of contract. One employee dismissal is worth thousands of sexual harassment training sessions.
5. Training should be more effective and provided jointly by men and women so men do not think it is a woman vs. man exercise. Mediated conversations between small groups of men and women will help forge consensus about what constitutes sexual harassment. Anonymous “climate surveys” should be done frequently that include questions about employees’ experiences of harassment with management taking concrete actions. Men should call out other men when they see such behavior or hear inappropriate comments. Those “cut it out” exchanges or micro-interpersonal interactions have tremendous power.

The internet does not allow your company’s decency calculation to be forgotten. It is forever. Young aspiring applicants, and your children, will find those sordid stories. Social media/internet/twitter is alive with women sharing stories of sexual harassment and assault at work. All players in the drama will inevitably have their reputations tarnished including the company board members, the CEO, the management structure, the perpetrator, and the culture. Perhaps if decision makers looked at this as a reputational issue for them personally, more guardrails as referenced above would be installed and consistently enforced so the subject behavior is experienced less and less.

The public finds out about the confidential settlements, sooner or later.  A victim who eventually moves into a power position may publish the details of the settlement, violating the confidentiality provision. An interested state, federal or oversea regulator demands copies of the settlement agreements pursuant to the subpoena/application process. The material gets hacked and released or more allegations come to light from many different women.  Nothing stays confidential in this very transparent digital world and the internet allows nothing to be forgotten forever!

Posted by Attorney Ruth A. Binger. Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, digital media law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice.