Digging deeper than he said, she said
#MeToo can put extra pressure on employers faced with a complaint, but proper investigations are essential
Jun 18, 2018
Chris Hardwick and Lydia Hearst attend the premiere for "Solo: A Star Wars Story" in Los Angeles, on May 10. REUTERS/David McNew
By Jeffrey R. Smith
The #MeToo movement has shaken up how society views and responds to sexual harassment.
While in the past it was often covered up or laughed off, it’s now being taken more seriously. More victims of harassment are feeling empowered to come forward and more perpetrators are being made to accept responsibility for their actions and face consequences.
This increased awareness and social action is something that is affecting workplaces and employers as well.
A significant amount of sexual harassment takes place in the workplace, where the dynamic of power imbalance is common and part of normal workplace structure.
It’s always been important for employers to have sexual harassment policies in place, but in the past it wasn’t always a priority. Now, they not only need to have such policies, it’s essential to enforce them consistently and not hesitate to take action.
In the climate of #MeToo and shaming of sexual harassment perpetrators, employers should remember to act fairly and in step with their policies. But it can be a tricky and sensitive process when allegations are made but not yet proven. How should employers respond?
It’s common practice — and part of workplace harassment policies — for an employee accused of harassment to be removed from the workplace while the employer conducts an investigation.
This is also common for other types of serious misconduct, but in the case of harassment it’s generally a good idea to keep the accused harasser away from the complainant.
If the complainant doesn’t feel safe, the employer could be accused of fostering a poisoned and unsafe work environment. It’s also important that this type of leave for an accused harasser be on a paid administrative leave — an unpaid leave would be considered a disciplinary suspension, and meting out discipline before a fair investigation is complete would expose an employer to legal liability.
And that’s where it can get difficult for employers.
In the #MeToo climate, when someone is accused of sexual harassment, it’s usually assumed to be true. And this can be a good thing, as it’s in response to the way things have been for a long time and an attempt to right past wrongs — complainants have traditionally faced obstacles in being heard or taken seriously. And for too long, harassers have gotten away with it.
However, this monumental shift in how harassment complaints are treated can go too far in the opposite direction, and employers have to be careful to properly investigate complaints to get the facts.
Take for example, the latest harassment allegations in the entertainment industry: Chris Hardwick, a TV interviewer, game show host, and podcaster, has been accused by his former girlfriend of sexually harassing and emotionally abusing her over their three-year relationship.
Her account of their relationship is pretty shocking and Hardwick has denied the allegations. At this point, it’s a case of he said, she said, but most are choosing to believe Hardwick’s former girlfriend.
As a result, AMC, the TV network that broadcasts several interview shows Hardwick hosts, has suspended those projects and removed him from hosting its panels at the San Diego Comic Con next month. However, it’s not saying the projects are cancelled — just that it’s not moving forward with them while it assesses the situation. In the event the allegations are revealed to be likely true, all of Hardwick’s projects with AMC will likely be officially cancelled.
NBC, the network that was planning to produce a game show hosted by Hardwick in the fall, is holding off until it also assesses the situation. NBC said it would “take appropriate action based on the outcome.”
The measured reactions by AMC and NBC are examples of striking the balance between needing to act on allegations promptly while taking the opportunity to ensure they have the facts before making a final decision. Employers would be wise to do the same when faced with sexual harassment complaints involving their employees.
Most people can decide whether to simply believe or not believe either party based on their perceptions with regards to harassment complaints, but employers don’t have that luxury.
When someone’s job and workplace safety is in the balance, belief comes with knowledge. And knowledge comes with a fair and balanced investigation.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.