“Checks on power failed. Checks on ego failed. Legal failed. HR failed. Simple human decency disappeared,” said Phillip Maltin, attorney at Raines Feldman, when he recently discussed the Harvey Weinstein scandal with Inside Counsel.
In some instances, Maltin suspects, leaders, particularly those who were making decisions about themselves–like Harvey Weinstein–allowed ego to eclipse good advice and clear thinking. In other instances, he suspects executives pressed legal and HR for the answers and counsel they wanted.
“Every human system is imperfect, but we as a culture do a poor job of accounting for and trying to correct it in the workplace,” he said. “We need a process that checks, corrects and reverses head-scratching, dangerous, even illegal decisions.”
In the future, anti-harassment laws are not going to change much, so the legal implications will not change, but the consequences will change. The avalanche of sexual assault allegations directed at the entertainment industry has changed that industry forever–the revelations have shamed the predators and the professionals hired to protect the workforce from them. Bad decisions will cause financial loss from lawsuits, legal fees, penalties and time away from revenue-generating activities. Businesses have revealed they’ve secretly paid hundreds of millions of dollars to settle harassment, and perhaps more serious, claims. Because of this, every business will now have to pay for those offenses, either by absorbing the cost of changing protocols, or compensating victims for their employer’s behavior and for the rage inspired by the bad behavior.
Anti-harassment and antidiscrimination laws may not protect workers at all. Maltin sees this whole thing on a continuum. Sometimes the law inspires impulse control and it stops people from doing dumb things, but that’s not reliable. “I wish I could say the law controls bad behavior. Obviously it doesn’t,” he said. “I wish I could say that people who are injured are fairly compensated, but many are not. And, it’s not unheard of that some undeserving people abuse the system to try to achieve their vindictive or selfish ends.”
So how can we prevent situations like this from happening in the future? According to Maltin, we need to change how we do things because it looks like executives have gotten the wrong advice and training. The Equal Employment Opportunity Commission has determined that human resources professionals, consultants and, yes, lawyers have focused on the wrong things–particularly during mandatory sexual harassment training. Years of anti-harassment training, it turns out, are ineffective because, in most instances, the training centers on countering allegations of harassment, not on preventing it or protecting victims. And these failures can cause someone who should be protecting victims to blame them.
Moving forward, per Maltin, we can ensure that the organization delivers training designed to create a safe, respectful workplace with an effective complaint process. As for required anti-harassment training, busy executives must attend, as they are not above the requirement; some are very much part of the problem.
“The bad message sent by executives too busy to attend is that they are too important to care about ensuring a good place to work,” he explained. “Training should include bystander-intervention, to inspire the confidence to intervene where appropriate and the tools to protect coworkers. And supervisors need constant reminders that the time to respond to complaints is the moment they receive them.”
Training should also focus on communication and awareness–it should explain the law, but discuss behavior, he pointed out. It should not focus on how to defend against claims, how to investigate them, and how to avoid them. It can mention these things, but should not focus on them. Defensive training fails to change behavior. In addition, lawyers need the freedom to express opinions, HR needs more respect, and both need to feel unintimidated to deliver unpopular advice. Business leaders should meet with legal teams to create processes that address the often subtle, sometimes unsubtle, pressure on lawyers to give the advice executives wish to hear.
“I think the standard in all industries should be an executive quality assurance committee authorized to override and correct troubling decisions. These committees should comprise members of the board of directors, the legal team, and the human resources department,” he explained. “Perhaps we can press for legislative protection, statutory confidentiality, for the activities of these committees. This would free up the members to honestly consider and comment on how to correct problems without worrying whether their comments will be used against them, and the business, in lawsuits.”
Businesses should do what Netflix did when it learned of allegations of pedophilia against Kevin Spacey. Netflix suspended production of the series in which Spacey played the President of the United States, “House of Cards,” to investigate charges against him. A public statement hinted at cast and crew concerns, presumably about working with Spacey. Although we do not know whether Netflix was less proactive and more reactive, we do know it acted swiftly to protect its workers and its brand once the allegations hit the media. Protecting the workforce can certainly have the derivative positive impact of enhancing the brand.
Looking to the future, per Maltin, something else is coming, perhaps worse than what we’ve heard so far. It’s an aftershock called “compassion fatigue”–the gradual loss of empathy for victims of sexual assault.
“It’s the next chapter,” he said. “People burn out when they get overwhelmed by, or simply tired of, complaints about something calling for empathy.”
For example, it turns out that mental health workers started to tire of the complaints of terrorism victims after 9/11. It’s not that the mental health professionals disbelieved the victims. They just got weighed down by the emotionally heaviness. Compassion fatigue for harassment victims is a real, if not inevitable, danger. Maltin expects some lawyers and business leaders will label new victims copy-cat complainers, publicity seekers. When this happens, lawyers, HR professionals and executives will disbelieve victims, causing outcome-driven investigations that unconsciously protect the powerful and blame the victim.
However, Maltin thinks we can control compassion fatigue by training everyone involved to always ask a simple question when they hear a complaint and they quickly conclude the victim has an agenda: “How do I know that?” It’s that simple.
He added, “Suspicions, decisions based on circumstances and conclusions grounded in intuition, are nothing more than feeble support for biases.”
Amanda G. Ciccatelli is a Freelance Journalist for Corporate Counsel and InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more.