Most execs don’t view harassment as an issue

Management needs to control how it responds

In the face of # Metoo, many Canadian employers have vowed to take harassment seriously, investigate promptly and punish swiftly. # Metoo has resulted in a plethora of commentary and roundtables, as well as significant media coverage.

On the legislative end — the federal government released its report entitled Harassment and Sexual Violence: What We Heard, and Bill C- 65 was enacted just days later. Some have declared these proclamations to be empty platitudes and believe that, once the attention around # Metoo dies down, employers will revert to a more cavalier approach toward harassment in the workplace. The results of the Gandalf Group’s quarterly C-Suite survey supports that notion, with 94% of C- Suite executives refusing to see sexual harassment as a problem in their workplaces. My view is that the results are skewed. If they were to have admitted to more, they would be acknowledging problems in their own leadership.

In my view, terminations in the face of sexual harassment allegations should almost always be for cause. The goal in firing a high- profile employee must have two components: terminating the perpetrator, and combating any systemic crisis in your workplace.

In order in to avoid getting more employees embroiled in lengthy uncomfortable investigations, larger companies in particular opt to quietly walk the offender to the door with a paycheque. I caution against this approach. If you pay perpetrators, you run the serious risk of tarnishing the company’s image. The terminations need to be coupled with a strong message: your workplace has zero tolerance for harassment.

Many waited to see how much NBC would pay Matt Lauer after his 20 years of service. NBC quickly confirmed that Lauer would be paid nothing. On the other hand, the negotiated departure for Bill O’Reilly in April of 2017, reportedly landed him more than $ 32 million from Fox. That sent a very different message — especially to the women that O’Reilly had allegedly harassed.

Even proof of workplace sexual misconduct does not necessarily mean that a court will uphold a termination for cause. Employers may well end up with a court ordering severance. Should this persuade companies to terminate without cause? It depends on the value of salvaging the company’s reputation relative to the risk of being forced to pay severance. Few employees who did act inappropriately will risk the notoriety of a public trial for the sake of some months’ severance.

#Metoo has lent employees a powerful platform to come forward with complaints without fear of reprisal, and with a belief that senior-level perpetrators will not be treated with impunity.

Here are some tips on how to deal with such allegations in your workplaces:

1. Even when the allegations involve a top-level executive, be prepared to fire for cause for the misconduct: If you exit the perpetrator quietly, you lose the opportunity to tell your employees that you are prepared to deal with harassment in the workplace.

2. Ensure that your harassment policies do not collect dust: Policies should not stand alone. While you may have a substantive policy/ code of conduct, more often than not employees often say they have never been trained on those policies, and in the worst of cases, had no idea they even existed.

3. Invest in education for your HR department, and other management staff: I cannot emphasize enough how critical it is for your entire management team to understand their role in the face of a complaint.

4. Don’t hire a third party to investigate incidents of harassment in your workplace. Conduct it internally. More often than not, if the matter moves to litigation, the court will conduct its own investigation and pay no regard to yours. Instead, work with your lawyer to conduct an internal investigation that is objective. However, do not select as your internal investigator anyone who was involved in the dispute or reports to anyone involved.

5. Compliance and consistency: All employees must understand that compliance with the anti-discrimination and sexual harassment policies is not optional. Make it clear that violation will be cause for discharge.