In-House Counsel

Which Companies Tolerate A Sexually Harassing GC?

What do their anti-harassment policies look like, and what are their practices?   

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Is there anything more that can be said about workplace sexual harassment that has not already been said?

Well, plenty.

It’s a subject that keeps growing and expanding as revelations of past (and current) harassing behavior increase while attitudes seem to be slowly evolving. All in all, it makes for a rapidly changing workplace.

Recall the Dialogues last year which I had with my partner, the Notorious AEG (oh, sorry — Amy Epstein Gluck)? In which she let the light shine sharply on what I thought were my extraordinarily enlightened views? Well, she reminded me the other day that it was time for another series of Dialogues to deal with the subject given the monumental changes that have taken place with the advent of the #MeToo movement. (Uh-oh — hope she didn’t see/hear me say/do something equally extraordinarily enlightened.)

“Most Companies Don’t Tolerate GCs Who Sexually Harass, Experts Say”

Which brings me to a headline in the New York Law Journal this week: “Most Companies Don’t Tolerate GCs Who Sexually Harass, Experts Say.”

This headline puzzled me. For sure, employers should not tolerate workplace sexual harassment, from anyone, especially GCs — as I teach in my harassment training sessions, “top down” behavior is reflected in general workplace behavior, and harassment can only be prevented if workplace culture and employee attitudes are in sync with anti-harassment culture.

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So, what does one make of the NYLJ headline? If most companies don’t tolerate GCs who sexually harass, what about the other companies? Does the headline implicitly mean that they do tolerate GCs who sexually harass? Do these other self-identify as tolerating sexual harassment? In GCs?

If so, what do their anti-harassment policies look like, and what are their practices?   

I admit that I didn’t focus so much on the substance of the article — which indeed had many good points — because I was more interested in the headline.

For example, the reporter correctly noted that, according to one employment lawyer “the baseline problem, she said, is that workers are vulnerable to harassment because they can be demoted or transferred or fired at will, while executives are protected by contracts with huge severance packages.”

Just so. And this issue can be fixed quite easily and legally if a company is so inclined.

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First — To Google!

Anyway, to find out about “companies which tolerate GCs who sexually harass,” I first cleverly Googled the phrase “companies which tolerate GCs who sexually harass.”

I was overwhelmed — up popped a list from all over the country, from small startups to Fortune 500s! So many that I printed out only a list of companies which begin with the letters A. And still that was a lot.

I wonder how Google identified them?

A Scientifically Selected Sample Is Chosen

From this group of “Letter A” companies, I selected a sample at random and decided to contact anyone in the C-suite who would talk to me. And then my research began.

The Research Begins!

The receptionist at the first company, let’s call it “ABC,” told me that the CEO would have to get back to me — he was out playing golf “with all of the other guys” in the C-suite.

Strike one.

At “BCD,” I was directed to the Chief Office Officer (“COO”), who told me that BCD didn’t need a GC since “lawyers always gum up the works and cause more problems than they’re worth.” Thanks. When I asked who was charged with dealing with employee complaints of sexual harassment, the COO proudly told me that there have never been any such complaints, because “we make sure we only hire men” to avoid such problems.

Hmm. Strike two.

Okay, I gamely called “CDE” and this time asked to speak to any female officer of the company, hoping that maybe I could get to the bottom of this. Jane C spoke to me quite frankly. CDE has a very robust written anti-harassment policy, she said, which states explicitly that it definitely does not tolerate GCs who sexually harass. Well, I said, perhaps Google erred in putting CDE in the “companies which tolerate GCs who sexually harass” category. As I was about to hang up, however, she whispered to me that while Google may have indeed been wrong, it was only because “women employees know that if they rat out any of the male bosses they will be fired. So, they never complain.”

Oh. So, the written anti-harassment policy is indeed robust and clear, but people are scared to follow it for fear of retaliation.    

I decided that I had to make one more call.

Pay Dirt!

This one was a charm. When I called company “DEF,” I was put through to the CEO himself(!) — who promptly told me that, indeed, Google had gotten it correct — his was a company which “tolerates GCs who sexually harass.”

Eureka! An honest man! What could I learn from him?

He told me that “political correctness” was “not for him,” and that his company had no anti-harassment policy, written or otherwise, no employee handbook at all, and hired and fired at will, with no attention to any of those “damn protected classes.” And harassment complaints? “In the garbage,” and the complainer “gets booted out” — “problem solved, and no one wants a whiner.” Moreover, “no need to spend a fortune on trainings, handbooks, and an HR department.”

Wow, I actually found one of the companies implicitly alluded to in the NYLJ article! There are such companies — real throw backs! It positively boasts about tolerating sexual harassment!  

Takeaway

I thanked him greatly, but before I hung up, he quietly asked me how much I charge to defend harassment cases. Why, I asked?

Because, he said, he has a whole lot of sexual harassment lawsuits pending.

“But,” he noted proudly, “none against the GC!”    r122

richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.

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