In-House Counsel

Can We Not Waste This Moment By Merely Updating The Employee Handbook?

I understand the lawyerly instinct to work with documents, but more is needed.

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Harvey Weinstein (Photo by Drew Angerer/Getty Images)

Men who got away with sexual harassment for years are suddenly not getting away with it. Harvey Weinstein, Mark Halperin, Kevin Spacey, men once deemed too powerful to take down are being taken down.

In response, lawyers for America’s most powerful companies and organizations are… updating their employee handbooks. From NBC:

In anticipation of the next headline, companies are huddling with legal and human resource departments, combing over existing nondisclosure agreements, asking for reviews of employee manuals and reminding staff how to comport themselves and how to complain. Among the suggestions: no after-dinner drinks and no one-on-one meetings in a room with a door closed.

The banality of it all is striking. We’ve got women recounting stories of how men masturbated while sitting at their desks. We’ve got men talking about how they were harassed when they were small boys. And the response from in-house and compliance lawyers is: “OMG, THAT IS SO NOT IN THE HANDBOOK!”

For in-house counsel, the first job is to protect the company. That means you have to make sure that “the company” is not “responsible” for sexual harassment or assault that happens on company time or at the company’s premises.

Step 1: Sexual harassment and assault violates our terms of employment, as clearly stated in this employee handbook.
Step 2: ???
Step 3: No more sexual harassment or assault.

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Every time you read a “no tolerance for sexual harassment” policy, you should hear “Don’t you DARE try to sue us just because one of our employees assaults you.” Every time you see one of these new, “no after work drinks” or “no closed door” policies, know there is a lawyer somewhere, trying to cover the company’s ass by giving them plausible deniability for any assault or harassment committed by their employees.

It’s a lame, though entirely lawyerly, predictable, and risk-averse response. It’s not designed to protect the victims, it’s not even designed to protect the accused by giving them presumption of innocence and due process. The new “focus” is just designed to keep the corporate wheel turning, regardless of who jerks off where.

If you want to get the attention of in-house counsel, somebody is going to have to pierce the veil. Some major company is going to have to go down, in civil litigation, because it harbored sexual predators in their midst and did nothing.

It can’t be just about the employee handbook. It can’t just be about self-reporting abuse you receive. It’s got to be about a corporate culture that treats sexual assault as a threat to its very business. Lawyers don’t rely on the handbook and self-reporting to root out potential embezzlement and corporate espionage. They have a security system in place to deal with that.

That’s the same thing that needs to happen here. Sexual predators are trying to ruin the company. If we can agree on that, we might start to see some progress.

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Companies Scramble to Deal With Growing Harassment Complaints [NBC News]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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