In the last several months, we’ve seen continuing coverage of the #MeToo movement as well as the disclosure of new scandals, including the controversy that embroiled CBS News and its former CEO, Les Moonves. Of course, there is much yet to be learned, but discussions of whether CBS’s problems would be “solved” when Moonves stepped down have led us to consider: Is that enough?
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Unfortunately, an alleged harasser quitting his job isn’t a magical fix. To HR professionals, that may seem intuitive and obvious. But to much of the population, including stakeholders at major businesses, it may not. That can place an HR professional in the very difficult position of having to push for an often messy, controversial, embarrassing, and expensive investigation that her supervisors just don’t want to conduct.
The Sales Pitch
So, how do we sell stakeholders on the importance of an investigation? They need to understand the risks to the organization that result from ignoring the problem. Sexual harassment—especially of the severity that we see in the news—doesn’t occur in a vacuum. If the alleged misconduct is so severe that an employee feels compelled to resign his employment, you should assume that other employees at the business had some knowledge of what was occurring. And that is a point of liability.
If one or more management-level employees was aware or even suspected that workplace harassment was occurring, and failed to escalate the situation to HR so it could be investigated and addressed, the company may have liability for the harassing conduct, even after the alleged harasser resigns. That should be a significant concern.
There are also very real morale considerations that support the decision to conduct an internal investigation. If one or more individuals have been forced to tolerate behavior they perceived to be harassing, making them feel validated and supported within the workplace is very important to retaining them and helping them feel safe and confident at work again. Completing an investigation and confirming some or all of an employee’s allegations can be extremely helpful in this process.
Many employers are rightfully hesitant to produce a document that admits in any way that harassment or other unlawful conduct was going on in their workplace. But an admission isn’t necessary to support or validate employees who have been subjected to harassment. Even something as simple as acknowledging that the alleged harasser behaved in an unprofessional manner or crossed recognized social boundaries—without ascribing any intent—is enough. And, of course, you should restate your commitment to observing respectful boundaries between employees.
Finally, in the current environment, many male employees are feeling targeted and unrepresented, and worry about the impact of false allegations. In the face of such fears, an investigation may help you prevent retaliation and reassure all employees that the company is invested in a fair process, regardless of what an individual employee elects to do. When an employee resigns before an investigation occurs, others often speculate that the alleged harasser was “targeted” or forced to resign without having his rights protected. An investigation that substantiates the allegations of improper conduct can put the speculation to rest and prevent employees from taking sides in the matter.
Bottom Line
It’s time that we put aside the idea that a public resignation “fixes” workplace misconduct. While it may resolve the issue of future harassment, it does nothing to address how the problem developed and evolved in the first place, whether the company faces any liability, and how to move forward in a productive and conscientious manner. No one relishes the idea of a difficult investigation into an uncomfortable topic, but it’s wise to pursue a full understanding and explanation of how problems arose, so you can effectively avoid similar issues in the future.
Lauren E. M. Russell is an employment law attorney with Young Conaway Stargatt & Taylor, LLP, practicing in the firm’s Wilmington, Delaware, office. She is a member of the Employers Counsel Network as well as Editor of and frequent contributor to Delaware Employment Law Letter. She may be contacted at lrussell@ycst.com.