#MeToo And What To Do With Old Claims

Following policy and making defensible decisions is critical. A company ignores old complaints at its peril.

This will be my last article for a while, and on my way out, I want to end with a “what to do” for a sensitive issue that has a lot of people throwing up their hands, rather than stepping forward and dealing with situation: #metoo. Because this situation is completely avoidable. And employers have a duty to keep their employees safe.

It seems that every day we learn about some new fall from grace. Recently, we learned about a famous male host’s love dungeon.

None of this is that shocking to me; people push limits in the area of sex, and power and sexual attraction is a dangerous combination.

I have a personal issue with people behaving in a way that impacts the ability of others to consent. I think consent isn’t that hard to get if the person wants to have sexual contact with you. But if you have to remotely lock your office door, or trap someone against the door of your hotel room, you don’t have consent.

This is an important point because a lack of consent isn’t just a potential criminal problem for one of the parties. It is also a potential nightmare for an employer if these are employees of the same company. And even if they aren’t, this could be an embarrassing and potentially devastating moment for a company.

These are hairy issues to deal with. One party says consent. The other party doesn’t. And often the two parties were the only parties there. I have my own thoughts on who to believe, but that doesn’t help an employer resolve these issues. Employers who have good policies will immediately apply those policies, and let the chips fall where they may. But what if someone waits years until they tell the company what happened. What then?

Old Claims

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Good HR policies should say: report any incident that violates company policy immediately. Managers should be mandatory reporters, and should be obligated to tell the company if anything happens and they see it. But failure to do so doesn’t excuse a company from following their own policy. So what’s an “old claim”?

An old claim can be a claim as young as a few months. But many of these #metoo stories are years, even decades old. How can an employer investigate something that happened 12 years ago?

You can’t. But you can try.

Unfortunately, a lot of companies just throw their hands in the air and say, it’s too old, I can’t handle this. And maybe employers are worried that this old story hides a lot of new ones.

Hidden New Claims

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Unfortunately, when people get away with bad behavior, they often do it again. Sexual harassment is no different. And companies know this.

As an employment lawyer, sexual harassment claims worry me for established managers, because they tend to be like onions. You find one of them, and there are more. As we have learned from people like Harvey Weinstein, there can be hundreds of victims with a particularly powerful person.

If there is an employee like this within an organization, an employer can expect claims to literally come out of the woodwork. And I think often with old claims, this is what an employer is afraid of. They are afraid that they will find more. So employers bury their heads in the sand.

The Right Way

That is clearly not what to do, as illustrated by NPR.

So what’s the right way?

  1. Follow the anti-harassment policy to the letter. No matter when the complaint of harassment comes, no matter how it comes, follow your policy. Even if the claim is 30 years old. Especially if a claim is very, very old. Because the last thing an employer would want is to find is they had a Weinstein on staff, but they didn’t know it, and now their reputation is destroyed for the public.
  2. Be willing to have uncomfortable conversations. Sexual harassment claims are incredibly uncomfortable conversations to have. You have to use words like “consensual” and you have to talk about human anatomy and body parts. People don’t like doing that at work. But if you want to avoid the type of publicity that Good Morning America and NPR have, this needs to happen.
  3. Make a justifiable judgment call. The final decision regarding how to resolve a harassment claim, and the way that claims are treated by the company, should be one that you are comfortable seeing on the national news. If someone read back to you the gist of the decision, would you be ashamed? Listening to the NPR CEO justify his decision regarding their own scandal is painful. I hope that if at the time of the decision, had he practiced saying what he did to the public, that he has enough self awareness to see how awful it sounds. One could hope.

At the end of the day, outside of rare public examples, people who are involved in inappropriate behavior at work are rank and file at-will employees. They can be fired not because the company thinks they are sexually harassing, but because of their judgment in these situations. For example, having a report come to your hotel room during a business trip is a poor decision, consensual sex or not.

The #metoo movement has caused a lot of uncomfortable discussions as a nation about sexual harassment and inappropriate behavior by people in positions of power. In a company, it should be an important reminder that following policy and making defensible decisions is critical. A company ignores old complaints at its peril.


beth-robinsonBeth 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 employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.