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Guest Commentary: Yes, There's A Predator In Your Midst
Linda L. Holstein

Guest Commentary: Yes, There's A Predator In Your Midst

Editor’s Note: Sexual harassment is among many factors that limit the number of women who reach top executive jobs. Linda Holstein is a veteran employment law attorney who has represented companies in disputes. She explains why sexual harassment has persisted in workplaces and what businesses can do to reduce or eliminate harassment.

Are you an executive, a small business owner or an outside board member longing to post a new hashtag, #NotAtOurCompany? Does the ongoing tsunami of sexual misconduct allegations, ruined male careers, empowered women and horrifically gross descriptions of sexual assaults leave you longing for the good old days of early 2017 when you could count on your sexual harassment policy to protect you in court? After training your managers to take seriously any and all complaints of sexual harassment, are you shocked to learn that most sexual harassment allegations are never verbalized, exposed or reported for years?

These are the kinds of questions keeping Minnesota employers awake at night, particularly those who have faithfully invested in the latest anti-harassment prevention measures, the most up-to-date training, the most aggressive human resources policies. Why hasn’t it worked? Why, if you followed the letter of the law from the United States Supreme Court, no less, is there still rampant harassment emanating from bad actors right in the middle of—that’s right—your workplace?

Sexual harassment laws in this and every other state are designed to protect workers from intentional discrimination based on that worker’s gender. For Minnesota companies, these laws come from the Minnesota Human Rights Act and the federal act, Title VII, and are ultimately enforced by our state and federal courts.

During the last 36 years (sexual harassment was first recognized as a legal cause of action in Minnesota in 1982) those courts have struggled to set up a framework that encourages employers to try to “remedy” a bad workplace situation and stop any harassment that is sufficiently “severe and pervasive,” such that it “unreasonably interferes” with a worker’s job. That’s the magic standard.

The rule that governed every sexual harassment case—up until now—was that the alleged victim—virtually always a female—had to prove what was happening to her was severe and pervasive, not an “isolated incident,” not just an “offensive utterance” and, finally, something that happened to her specifically because she was female.

This standard favored employers in court. But many employers didn’t want to risk the bad publicity of a public courtroom setting, so they reached a compromise with the woman reporting the harassment “out of court,” which was, of course, confidential. Moreover, the secret settlement featured a “non-disclosure agreement” preventing the fact of, the amount of and the participants in the very settlement itself.

Thus, the cycle was complete: Bad act, internal reporting, outside investigation, “lawyering up,” legal complaint, settlement, out of sight, out of mind. The alleged victim had some, or possibly a lot, of money, but no emotional vindication; the alleged harasser had some, or possibly a lot, of embarrassment and reputational damage, but, at least until recent months, a job to return to.

While the harassment complaint might stay in the harasser’s personnel file for a year or so, no one else in the company theoretically “knew.” Even with the small number of cases actually litigated through the appellate level, including the Minnesota Supreme Court (obviously not “secret”), companies and alleged harassers who committed to fighting to the death ended the ordeal with little learned and lots of lawyer fees. The mantra was, “But it sends a message.”

But to whom was the message sent? Not to the next perpetrators, not to the employees experiencing harassment but not reporting it, and especially not to the many hardworking employees who couldn’t imagine or never saw a co-worker harassing someone in their workplace. Despite hours of mostly boring training and lectures, policy updates and endless seminars, the problem of workplace sexual harassment remains.

If you are an employer who truly wants to stop harassment in your workplace, here are three practical tips to consider:

1 ) “Zero tolerance” is a powerful credo in theory but not in practice.

From U.S. Sen. Kirsten Gillibrand of New York to the Secretary of the U.S. Air Force, the drumbeat to stamp out sexual harassment often starts with the phrase “zero tolerance.” As in: We in the U. S. Senate, or in the U.S. Air Force, or in our company will absolutely not tolerate any form of sexual harassment, or we will immediately punish those who harass in our workplace.

The admirably snappy ring to the words “zero tolerance” has the added benefit of seemingly unquestionable clarity: if “credible” evidence exists that you have harassed, you’re out. This line of thinking started with the misplaced notion that certain diabolical men lurking in a number of American workplaces needed to wake up, shape up and stop harassing. Once they were stopped, shamed or fired—weeded out, like thistles in a garden—the next batch of thistles would know better. And workplaces would be safe again, due to zero tolerance.

Missing from the paradigm was, of course, the reality of the women being harassed. From unwanted touching, leering and texting to sexual assault and rape, the continuum of bad acts perpetrated upon female employees is as complex as the women themselves and their reasons for coming forward or remaining silent (but not forgetting). Fear of losing one’s job as a complainer, a whistle-blower, is paramount.

But an equally potent, and not surprising, misgiving is the fear that reporting under such a system will result in the automatic firing of the harasser. Companies tout their “fair and equitable” investigation protocol, but a woman contemplating the reporting of harassment under a zero tolerance system is more likely to delay reporting, suffer in silence or, worst of all, try to avoid, as opposed to call out, the harasser. In truth, the very notion of zero tolerance is based on the ideal not of just a harassment-free workplace, but of a sort of utopian environment where predators will never be hired, much less fired. Unfortunately, predators are present but rarely accounted for. There are better ways than a so-called “zero tolerance” tagline to stop their behavior.

2 ) The statute of limitations under Minnesota law is one year following the most recent incident of harassment; under federal law, as set forth by the Equal Employment Opportunity Commission (EEOC), it is 180 days from the most recent incident.

Much of the pushback to the recent national outcry over sexual misconduct is the shock that men have lost jobs and careers over allegations stemming back 20 or more years. “No due process; no chance to defend himself,” people lament. Such lamentations have often resulted in additional women coming forward with similar allegations against the accused harasser, pointing to a “pattern” that adds credence to the original claim.

In a workplace setting featuring employees who are not famous, rich or otherwise publically noteworthy, reports of harassment should always be dealt with swiftly and thoroughly. Even more important is encouraging the reports themselves to be made as soon as possible after an incident occurs.

Human resources professionals are constantly frustrated by employees “not following” their carefully crafted policies. Indeed, the U.S. Supreme Court has actually held that an employer can defend itself in a hostile environment lawsuit by asserting that the plaintiff “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.” Meaning, she didn’t follow our policy. She reported too late, or never at all.

No company wants to litigate a sexual harassment claim. And most of the “litigating,” as of late, has taken place in the press and social media, not in a courtroom.

But it is well worth noting that an actual lawsuit, which is usually the understandable threat posed by lawyers representing alleged victims of sexual harassment, must adhere to Minnesota’s statute of limitations for sexual harassment: one year under the state act; 180 days under the federal act.

While these timelines can include reporting to the Minnesota Human Rights Department, the federal EEOC, various city agencies and the like, the law is designed to facilitate a resolution within a reasonable, and relatively short, length of time. Employees should know this. Those same anguished human resources professionals bemoaning a suffering woman’s failure to report might consider actually adding these statutes of limitations facts to their policies. It would encourage earlier reporting and fairer and more balanced investigations.

3 ) Bystander intervention is the most realistic way to encourage reporting and change your workplace culture.

If it takes a village to raise a healthy child, it takes an entire workforce to foster a harassment-free culture. The very subject of sexual harassment has traditionally been steeped in secrecy: protecting the identity of the accuser, honoring the privacy rights of the accused, promising confidentiality in the investigation, signing on to a non-disclosure agreement. Corporate executives routinely express fear that sexual harassment training will just bring “them” (alleged victims of harassment) “out of the woodwork.”

This is a dangerous and destructive attitude, mired in the outdated act of shaming the victim. In order to get buy-in from employees not inclined to harass nor self-identifying as likely to “be harassed,” the employer has to emphasize that sexual harassment is simply more likely to occur than not, in any workplace. It is a problem that these “other,” “non-harassing” employers can help solve.

The concept of bystander intervention—encouraging employees to speak up when they witness a forced embrace, hear a crude remark or racist joke, are copied on a pornographic text—is key to stopping harassment. If employees are silent about what’s going on in the next cubicle, that is, what is “going wrong in the next cubicle,” those employees are complicit in the wrong. Only a strong and consistent message of support from the employer can change that silence to action taken on behalf of all. tcbmag

Linda L. Holstein has defended companies and individuals accused of sexual harassment for 35 years, in addition to providing training and policy guidance to employers. She can be reached at lholstein@holsteinlawgroup.com .

Workplace Harassment: Out of the Shadows

It’s been a common practice for sexual harassment settlements to be reached outside of the public’s view. Or victims remained silent and there were no consequences for the people who engaged in the harassment.

But the infamous case of Hollywood producer Harvey Weinstein brought the problem of sexual harassment out of the shadows in October. After the Weinstein Company fired co-founder Harvey Weinstein, other prominent and powerful men were terminated or forced to resign when harassment allegations were reported in the news media. The #MeToo movement was born as women publicly revealed on social media how they’ve been harassed.

In Minnesota, national and local harassment cases are prompting private and public employers to re-examine what they are doing to prevent workplace harassment and how they are going to handle it when it does arise.

Minnesota conversations about sexual harassment policies, support for victims and due process for the accused are occurring more than two years after a high-profile episode in the state. Athletic Director Norwood Teague resigned from the University of Minnesota in the summer of 2015 after he acknowledged he “behaved badly” in his contacts with two women employees.

In November, Rep. Tony Cornish, a Republican, and Sen. Dan Schoen, a Democrat, announced their resignations from the Minnesota Legislature following sexual harassment allegations. Discussions about ways to reduce sexual harassment continue. —Liz Fedor, TCB Trending Editor