Over the last several years, the #metoo movement has exposed an epidemic of sexual harassment and assault in America. Nearly one in five women will be raped at some point in their lives. Nearly half of all women have experienced some other form of sexual violence.
More recently, the #metoo movement has exposed the legal system’s role in discrediting victims and covering up for offenders. Aggressive and threatening legal tactics followed by sharp-toothed nondisclosure agreements have allowed wealthy and powerful perpetrators to habitually reoffend and for their employers to continue to profit from them.
Jurors, courts, and the public are increasingly viewing claims of sexual harassment and assault through the lens of #metoo. Companies that fail to understand this will pay an ever higher price, both in courts of law and the court of public opinion. And those who utilize a playbook of deny, minimize, and cover up will be swept away by a rising tide of public condemnation.
HR professionals have a key role to play in educating corporate leaders about this new reality.
Beware male blindness
HR professionals must help their companies address blind spots to the signs of sexual harassment and assault in the workplace. Harvey Weinstein’s business associates rationalized the warning signs of his behavior as mere extra-marital dalliances, only to later proclaim horror at the full extent of his acts.
This blindness to the signs of sexual harassment and assault stems in part from the toxic belief that sexual attention from women is a perk of wealth, power, and fame. According to this view, the high school quarterback, the rock star, and the rich guy in the Ferrari “get all the girls.” If sexual attention from women is an entitlement, then consent is presumed. The captain of the football team asked you out? The lead singer asked you backstage? How could you say no? According to this view, the onus is on her to loudly protest the powerful, rich or famous man’s advances and explain why they aren’t welcome. Anything less than a shouted “no” is presumed consent.
David Boies, Weistein’s prestigious attorney who helped him conceal and quash multiple allegations of sexual harassment and assault, rationalized his belief that Weinstein’s acts were consensual as follows: “I thought, like a lot of people in Hollywood surrounded by very attractive women who want to make him like them, he [Weinstein] ended up in multiple affairs.”
This belief that women would naturally throw themselves at Weinstein because he is rich and powerful perfectly illustrates the problem.
Others may not buy into this form of male entitlement, but are nonetheless dangerously naïve to it. Many people were initially skeptical of allegations against Bill Cosby because of his wholesome persona. “Sexual harassment and assault happen and they are terrible, but they are rare and the vast majority of people just aren’t capable of that sort of thing”—or so this misguided line of thinking goes. However, the reporting on the scope and severity of sexual harassment and assault in America has shown that they are anything but rare.
HR professionals need to be on the lookout for the warning signs of sexual harassment and assault in the workplace, and must be aware of how people rationalize such warning signs away.
When a powerful person within an organization flirts with someone who reports to them, it is not a perk of power and authority. And just because that subordinate appears to go along with it, doesn’t equate to consent. When that powerful person creates opportunities to be alone with subordinates in inappropriate non-work spaces like hotel rooms, it cannot be written off as a presumptively consensual affair. When rumors start circulating about the “nice guy” in the office, they have to be taken seriously and investigated. And when a person comes forward with a claim of sexual harassment or assault, the company must not write it off as a money grab or a misunderstanding without a thorough investigation of all the facts.
Not a witch hunt
HR professionals must help corporate leadership resist any knee-jerk tendency to label sexual harassment and assault claims as a “witch hunt.” This is a cruel misappropriation of the term given its history. It is also revealing about the individuals who use it. The term “witch hunt” implies not just that the accused man is innocent, but that the phenomenon of widespread sexual harassment and assault isn’t real. Witches are superstition–they do not exist. The #metoo movement has revealed that this metaphor has it backwards. It is not a witch-hunt if sexual harassment and assault are real and ubiquitous.
When powerful men like Harvey Weinstein can hire ex-Israeli intelligence officers to spy upon and create disinformation campaigns about accusers, and when NBC News can hire a “Wikipedia Whitewasher” to remove entries detailing NBC News’s attempts to cover up allegations of sexual harassment, allegations that may have seemed outlandish before no longer do. Even allegations that seem false at first blush cannot be dismissed out of hand.
False claims are rare
Even when faced with provably false claims, companies must keep the context of the #metoo movement in mind. False claims of sexual assault are also both rare and over-reported by including unsubstantiated claims in statistics regarding “false” claims. Judges, juries, and the public generally are coming to grips with the lengths to which rich and powerful men, and the companies that employ them, have gone to cover up claims and discredit accusers. What is obviously false to you may not be obviously false to a jury or a public increasingly familiar with the tactics that powerful perpetrators have engaged in to hide their wrongdoing.
HR professionals must counsel leadership to not shout down, rail at, or sneer at even provably false claims. Such respect is owed, if not to the provably lying accuser, then to the multitudes of victims whose claims have been buried and wrongfully discredited. Attempting to shout down even claims you can prove are false will only come off as Weinstein-esque, and a public coming to grips with the revelations of the #metoo movement will, justifiably, no longer tolerate it.
Disclosure becoming the rule
To borrow a metaphor from Martin Luther King, Jr., sexual harassment and assault are an infection. Dealing with them is painful and ugly, but the alternative is to let them fester and grow. Quietly settling claims of sexual harassment and assault with non-disclosure agreements is not only growing more difficult, it is in many cases proving far worse for the employer in the long run.
Fox News and NBC spent millions of dollars on settlements and non-disclosure agreements to protect talent and avoid negative publicity. Those chickens are increasingly coming home to roost. Fox News spent millions of dollars over many years to quietly settle sexual harassment claims against Bill O’Reilly. But once those settlements became public, public pressure caused other companies to pull their ad buys and Fox News fired O’Reilly.
After Ronan Farrow reported that NBC had entered into nondisclosure agreements with at least seven women, NBC announced that “[a]ny former NBC News employee who believes that they cannot disclose their experience with sexual harassment as a result of a confidentiality or non-disparagement provision in their separation agreement should contact NBCUniversal and we will release them from that perceived obligation.”
Legislatures have also begun to act, passing laws limiting the ability of defendants to demand silence in exchange for settlement payments.
With a public that is increasingly aware of how companies have used non-disclosure agreements to silence victims and protect perpetrators, HR professionals should counsel leadership to think long and hard before utilizing this increasingly discredited tactic.
HR should defuse claims
HR professionals must help their companies select counsel that defuse claims rather than blow them up.
Litigation is not a sport and its purpose is not to allow lawyers to demonstrate their prowess. Bullying attitudes and Rambo style litigation tactics drive up legal fees and line lawyer’s pockets, but they rarely resolve cases at the lowest total cost to the client.
In cases involving allegations of sexual harassment or assault, such aggressive tactics are disastrous, and mediators, juries, and the public are increasingly unwilling to tolerate them.
Recent #metoo reporting includes shocking revelations of attorneys going far too far. Famed civil rights attorney Lisa Bloom, daughter of feminist attorney Gloria Allred, not only damaged her own reputation, but discredited the legal profession when she sold out her expertise representing victims of sexual harassment and assault victims to Harvey Weinstein. After Rose McGowan accused Weinstein of sexually assaulting her, Bloom wrote to Weinstein: “I feel equipped to help you against the Roses of the world, because I have represented so many of them.” “We can place an article re her becoming increasingly unglued, so that when someone Googles her this is what pops up and she’s discredited.”
Famed attorney David Boies, who successfully fought for marriage equality, personally signed a contract directing private investigation firm Black Cube to “provide intelligence which will help the Client’s [Weinstein’s] efforts to completely stop the publication of a new negative article in a leading NY newspaper[.]”
It is not just the fact that these attorneys represented Weinstein that shakes the public’s faith in the legal system. It is the tactics of personal destruction they employed to defend him.
Defense attorneys with no credibility cannot effectively advocate for their clients. How is a bulldog lawyer supposed to get into a room with a plaintiff, opposing counsel, and a mediator and convince the plaintiff that a proposed settlement is reasonable and remedial — or, in a world where such settlements can no longer be kept secret, help their client convince the public of the same? How is that bulldog lawyer going to convince a jury familiar with stories being told by the #metoo movement that their client shouldn’t be subject to the harshest punishments available?
HR professionals should urge leadership to avoid hiring pugilistic counsel in favor of attorneys whose tactics will not boomerang on the company
Honesty and openness
HR professionals must foster a culture of earnestness and remediation.
In an era of constant spin, manipulation, and deception, earnestness and empathy can be a superpower. Plaintiffs and their counsel (and even the public) are understandably suspicious of HR professionals and defense attorneys given the tactics some have used to stifle claims of sexual harassment and assault. Never reveal or acknowledge wrongdoing! Aggressively discredit the complainant from day one! The public will be increasingly suspicious of defense attorneys as new stories like those about Lisa Bloom and David Boies come to light.
To be sure, some claims are false and not all claims are brought in good faith. But many more claims – even if a good faith defendant reasonably believes the plaintiff is mistaken or overreaching – have at least a grain of truth to them.
If, instead of denying everything, a defendant company instead acknowledges the plaintiff’s perspective from the start and thinks creatively not so much how to win the case, but how to remedy the situation, it can defuse mistrust and suspicion and maybe open the door to an early resolution.
There are no guarantees. Plaintiffs and their counsel do not always respond positively to such entreaties. But it is a door that, once closed, is almost impossible to reopen. As accusations of sexual harassment and assault are increasingly tried in the court of public opinion, a demonstrably earnest and reasonable approach may be a defendant’s best and perhaps only defense in a society increasingly predisposed to believe accusers.
HR’s role
In a world where nondisclosure agreements are increasingly ineffective, settling a legal dispute is not enough. HR professionals must help their companies remedy underlying behavior and show publicly their efforts to address it. Commit to providing the individual defendant with anti-harassment training. Adopt rules prohibiting workplace relationships with subordinates. Hire an outside firm to investigate not just specific allegations, but the company more generally — and then act on the findings. If the conduct alleged is severe and the company has reason to believe it occurred, fire the individual defendant even if he makes a lot of money for the company — because it is the right thing to do, and because failing to do so will ultimately cost the company far more. Treat the sexual harasser in the boardroom as strictly as the sexual harasser in the mailroom.
No person of conscience can hear the stories coming out of the #metoo movement and not be both moved and horrified. Society is beginning to take a hard look in the mirror and courts, juries, and the public are increasingly demanding that corporations do the same.
