Commentary: The Best Way for Companies to Fight Sexual Harassment? Let Someone Else Handle It.
Nearly every day, a new case of sexual harassment by a famous figure appears in the news. But it’s not enough to tarnish these harassers’ reputations, or even cause them to be fired. Lost in the public shaming is a sufficient discussion about how to prevent or mitigate this behavior going forward.
To really address this issue, we need to hold employers (and in politics, party leaders) accountable. Because trust me, the employer often knows. In the case of Bill O’Reilly (I represented producer Andrea Mackris in her landmark suit against the Fox News host), Fox was well aware of the allegations, and even included a clause in his contract that he couldn’t be fired for sexual harassment allegations unless they were proven in court.
Since the #MeToo movement began, there’s been a lot of talk about having better leadership at companies. The argument goes that all of these horrible incidents could have been avoided if CEOs, boards of directors, and human resources professionals had just done their jobs when confronted with evidence of harassment. But in my years of handling these cases, I have learned that people often fail to get to the truth. They don’t want to stir the pot. They will make rationalizations for powerful and profitable men.
If we are serious about preventing harassment and ending it quickly when it does occur, we need to demand that private companies, nonprofits, political bodies, and other organizations implement ironclad procedures to handle allegations. Although individuals may fail to act, systems will not let that happen.
It’s time that we’re honest: Zero tolerance is the only path forward. Organizations must adopt a nonnegotiable process whereby any allegation—no matter how small or large—is immediately referred to an outside, independent body for investigation. These bodies should have trained investigators with experience handling sexual harassment cases. If the allegations are found to be true, employees must be either immediately dismissed or face severe consequences.
When I talk about this idea, I often receive a panicked reaction—usually from men. People tell me that, surely, we need to allow companies occasional discretion in “extenuating circumstances.”
But organizations have been using that defense forever. It’s become abundantly clear that current procedures, which rely on the decision making of employers with compromised intentions, don’t work. We’ve seen how company hotlines are nothing more than facades where allegations get buried, or worse, used against accusers. We’ve seen HR representatives, with little real power, sweep disturbing evidence under the rug. We’ve seen executives weigh future profits against keeping predators on the payroll.
Of course, tough policies won’t end sexual harassment altogether. People will continue to harass in their personal lives, and many will continue to do so even if they are fired from their jobs for such behavior. But instituting zero tolerance in the professional world would be a significant step forward in reducing the ability of the powerful to prey on their subordinates.
Companies and other organizations should embrace this model. Not only is it the right thing to do, but it’s a business necessity moving forward. We are in a position in which harassers—and those who are complicit with harassment—will no longer be tolerated.
When I take a workplace sexual harassment case, the first thing I look at is whether the employer knew about and took appropriate action on the allegations. Unless organizations can show that they facilitated an independent investigation and followed a zero tolerance policy, this heinous behavior will continue.
Benedict Morelli is a founding partner at Morelli Law Firm.