As published by Law 360
By Keith Rohman and Karen Kramer
February 24, 2020
The Harvey Weinstein criminal case exemplifies what happens when powerful people have unfettered influence over the much less powerful. As it turns out, the powerful in these stories of sexual harassment are most often men, wielding their positions of power over women. This dynamic plays out in many workplaces, affecting female janitors on the night shift to women employed in the C-suite.
On Monday, Weinstein was of two counts, a criminal sexual act in the first degree and rape in the third degree, meaning that the prosecutors convinced 12 jurors that beyond a reasonable doubt, Weinstein engaged in some of the conduct of which he was accused.
News reports indicate that over 80 women have complained that Weinstein harassed or assaulted them. Consider what might have happened if the second or the third woman who experienced Weinstein’s harassment had an internal process to effectively investigate her complaints and hold Weinstein accountable. We cannot know what Weinstein or The Weinstein Company’s board of directors would have done.
But if the women had confidence in a trusted process, it may have empowered them and others to speak out sooner and perhaps some of his most egregious conduct could have been curtailed. The standard used by workplace investigators is “a preponderance of the evidence,” a much more practical standard in the workplace than the criminal court standard of “beyond a reasonable doubt.”
In the years since the Weinstein scandal broke, employers and workplace investigators have seen a steady increase in employee complaints about all kinds of mistreatment, including sexual harassment and sexual assault. While there are few reliable statistics, our positions as the current president and immediate past president of the Association of Workplace Investigators Inc. — an organization of both internal human resources investigators and external attorneys and private investigators — gives us a unique perspective on this.
All types of workplace complaints are on the rise. Some believe that investigations were on the rise after the 2016 presidential race and continued to rise after the Weinstein accusations began. This trend may also be affected by the strong economy, as workers are more likely to complain when they are less worried about finding a new job if they are fired for speaking out.
The courts are a blunt tool for addressing these problems. The vast majority of harassed employees do not want to sue their employers or go through an emotionally demanding and highly public criminal court proceeding. Employees just want to do their jobs without being harassed. We hear again and again from women reporting harassment who often say, “I didn’t want to file a complaint; I just want the behavior to stop.”
The Weinstein case illustrates the vital need for a structure for harassed employees to have their complaints addressed in a safe and effective matter. Employers need an internal process that gives employees an avenue to report harassment without having to go through their chain of command when that chain includes the alleged harasser.
This can take the form of a hotline or an internal HR process that is independent of the chain of command. This process also needs to include assurances that the employer will respond to complaints of harassment that are reported by conducting an impartial, prompt and thorough investigation.
Once a complaint has been filed, employers need to assign trained professional workplace investigator to conduct an unbiased neutral investigation. AWI’s Guiding Principles state, “The investigator should be impartial, objective, and possess the necessary skills and time to conduct the investigation.”
These investigators can be internal employees or external investigators, as long as they are able to conduct unfettered investigations. Not all complaints will have merit and neutral investigations conducted by competent investigators are vital to separating the wheat from the chaff.
Finally, there must be organizational commitments to ensuring true accountability for those who engage in harassing conduct. The best investigation in the world is of little use if the employer ignores the findings and fails to take appropriate action, up to and including firing the harasser.
Sexual harassment has been part of the workplace for as long as there have been workplaces and there is no perfect fix for this problem. While training is one tool in combating it, unless workers have a robust process for dealing with and investigating sexual harassment complaints, this problem will continue.
There are criticisms of employers hiring their own investigators to conduct impartial investigations in response to complaints of harassment. Some opine these investigators cannot be truly independent.
This is not an unfair criticism, but we must look at the other options. Most of those victimized by this behavior do not want a long court battle or to wait for overwhelmed governmental agencies like the U.S. Equal Employment Opportunity Commission to respond to their complaints. As described above, most want nothing more than for the bad behavior to stop so they can continue to do their jobs. When employers have an effective complaint process in place, issues can be resolved in weeks or months, rather than the years the legal process inevitably takes.
In some ways, the Weinstein case is worlds away from most workers’ lives. He was once a powerful, wealthy Hollywood producer who ruthlessly exercised his influence for his own gratification by sexually assaulting and harassing aspiring actresses. But, it is also painfully close to what some workers, mostly women, experience in the workplace.
The Weinstein case has the same key elements we see in other cases: a significant power imbalance between the harasser and the employee; an employer who is unwilling to address complaints or take action when harassment is reported; and victims who lack good options to internally report the harassment.
The most important lesson from the Weinstein case is that employers need to set up strong structures to provide a safe, reliable and effective avenue for their workers to report sexual harassment. This is not a perfect solution, but it is the best available mechanism for ensuring that victims of harassment are heard.
Karen Kramer is president of Kramer Workplace Investigations and the president of the Association of Workplace Investigators Inc.
Keith Rohman is president of Public Interest Investigations Inc. and the immediate past president of the Association of Workplace Investigators.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firms, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. www.awi.org