As an employment lawyer, sexual harassment and gender-based discrimination are the most common issues I hear about from clients, in all types of scenarios. Sexual harassment in the workplace is fraught with the same issues that we see outside of the workplace. Sexual harassment allegations are without a doubt the messiest situations I have ever dealt with in my career. They are why policy is so important.
Employment lawyers’ focus is policy, because it is the only way to resolve these types of situations. An employment lawyers focus begins with whether a company has the policies in place that would empower a company to prevent sexual harassment as much as possible, and to handle claims appropriately if something does occur. Essential policies include not allowing supervisors to date subordinates (and if it happens, move the supervisor, not the subordinate). And a really good and clear reporting policy, one which makes all supervisors mandatory reporters. And training. They must have training.
Harvey Weinstein Is Every Employment Lawyer’s Worst Nightmare
If good policies are in place, and if HR generally follows them, most lawyers breathe a sigh of relief, unless one thing is present: the untouchable employee.
A few months ago, a former Uber female engineer quit and told a tale of major HR fails regarding sexual harassment. Clearly, her claims had some truth, because Uber then cleaned house. That was a fail of policy and execution. But it also clearly involved protecting a harasser who the company, for some odd reason, valued. I don’t think Mr. Weinstein’s long career as a harasser is quite the same type of failure. It is instead a bigger failure, one that I’ve seen only a handful of times (for an issue that comes up at least once a week!), and one that employment lawyers and HR can’t fix: an employee who is seen as so essential to the company that he is untouchable.
When your name is on the building, you are that kind of person. When you are a renowned Hollywood producer who is one of the most connected men in the country, you are that kind of person. And when you abuse your power and sexually assault women, even getting caught admitting it on tape, without recourse, you are definitely that kind of person. These are people who sexually harass many employees over the course of their career, but rely on the industry and impact of what a sexual harassment allegation does to one’s career to avoid any recourse. But know this: at some point, the behavior will come out and it may destroy a legacy and a company in the process.
When whatever firm or company was tapped on the shoulder to “investigate” this mess walked through the door of The Weinstein Company, I’m sure they went into the situation hopeful that they could give their client the outcome they wanted. And those hopes were dashed quickly as it became apparent that not only did Harvey Weinstein engage in blatant sexual harassment, but his company was the shell that allowed the abuse. At that point, all the investigation does is uncover one victim after another. And with each new victim, the dollar figure to resolve the situation rises.
There Will Be Settlements
One thing is sure: there will be many, many multi-figure settlements paid by both Mr. Weinstein and his company. If anyone is within the statute of limitations period, they went and got that process started immediately. I’m sure some attorney is already finding likely victims and discreetly passing along his information, just in case. Because now that it is public, much of the stigma towards the victims is gone.
The Weinstein Company had no choice but to fire Harvey Weinstein. While his name is literally on the building, he isn’t the company. And he is bringing the company down like a sinking ship right now. Because it is likely that he has never even been disciplined for his behavior, despite there being overwhelming evidence that he was violating the law, and even engaging in criminal activity.
Is there a way to avoid this? Yes. Harvey Weinstein doesn’t have to harass women to be the force he was at his company. The harassment was a sideshow that threatened a successful company. If he had been sufficiently disciplined early on, we would likely still have the Weinstein classics you know and love, but they would have been made without a side of sexual harassment. Evidently he knew how to interact with women without sexually harassing them.
Harassment and discrimination are always unnecessary side shows that negatively impact a company’s bottom line. No matter how competent, skilled, or successful an employee, if he (or she) refuses to behave professionally at work, he (or she) is an unnecessary liability. I think that for someone like Weinstein, he could have been sufficiently brought to heel with adequate encouragement and sufficient penalties for bad behavior. I’ve seen it done. However, maybe at the end of the day, having him at the helm was so important it outweighed his bad behavior. Only the final dollar amount of settlements will tell us if that is true.
But, Weinstein is an outlier. The Uber harasser couldn’t possibly have made more money for the company than the harassment story cost it. For most of my clients, the sexual harasser is a complete liability, and allowing him to stay is a foolish choice from a PR and business perspective. The harasser will do it again unless sufficiently punished; let Harvey Weinstein be an example for you. If someone is engaging in inappropriate behavior, and they don’t respond to discipline the first time, or their actions are so egregious they clearly cross the line, just fire them. The company’s bottom line, brand reputation, and remaining employees will all benefit from the decision.
Beth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at [email protected] and follow her on Twitter at @HLSinDenver.