#HR’s Role

It would almost be legal-columnist malpractice if I didn’t write a piece about Harvey Weinstein, Kevin Spacey, Roy Moore, Al Franken, etc. and the yet-to-be-named powerful men embroiled in the #MeToo sexual-harassment scandal. The 21st-century version of Anita Hill versus Clarence Thomas unfolding before our eyes is certainly shocking–but maybe not for the obvious reasons.

You’ll remember that the U.S. Supreme Court ruling recognizing sexual harassment as a form of illegal sex discrimination (Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)) approved the concept that policies and internal complaint processes that were supposed to halt workplace sexual harassment and correct it when it occurred could potentially limit employer liability where the company did the right thing. (See Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).)

In most organizations, prevention and compliance–anti-harassment policies, training, effective complaint procedures, prompt investigations and appropriate remedial actions–fall to human resources (with help from legal counsel). And, in the vast majority of organizations, HR does its job. For example, the Society for Human Resource Management recently reported that 98 percent of organizations in the U.S. have an anti-sexual harassment policy.

So what went wrong that led to #MeToo? Remember, sexual harassment, as I’ve told numerous training classes over the last 20-plus years, is more about “power” than “sex.”#MeToo is clearly about power; the most powerful men in the organization are the alleged harassers. This makes these situations quite different than typical harassment claims.

Making the issue more complicated, during the decades since the 1990s, the HR function itself grew its own organizational power. It went from the back office “personnel department” to highly visible and effective “human resources”–with its leader now sitting in the “C suite,” possibly ensconced on the same floor as the CEO. In fact, the 2016 Survey of Chief Human Resources Officers by the University of South Carolina Darla Moore School of Business found that 94 percent of CHROs report directly to the CEO.

The obvious question, then, is why didn’t HR’s C-suite access and anti-harassment efforts stop the “Weinsteins” of the corporate world? I don’t have the answer to that question (although it would be fascinating research for some Ph.Ds to undertake). I can only guess.

It’s hard to speak truth to power. These “Weinsteins” often had ultimate power, flanked by “enablers” protecting them. But even if HR had access or knowledge, it’s conceivable that executive compensation, stock options, senior executive and organizational loyalty, along with other tangibles and intangibles, could create further tensions and conflicts when the CEO (or equivalent) is the alleged harasser.

Anti-harassment employment law has evolved over time to give HR the opportunity to rein in the “Weinsteins”–even if he is the CEO. Dealing with an “uber-harasser” may mean implementing different approaches, such as third-party hotlines for complaints, enhanced training, senior leader direct access to the board of directors and/or the appointment of an independent ombudsperson. Importantly, if the CEO is the alleged harasser, HR must look to itself and other senior leaders to set the right tone and take appropriate action.

With #MeToo, companies unable or unwilling to redouble their anti-harassment efforts–and apply them to the highest levels of management–will face the music of heightened, expansive liability. There will be difficult consequences, combined with large settlements and jury verdicts.

This is a moment for HR to reflect and reboot. It’s not easy or safe to swim against the corporate tide. Those in HR and their legal counselors need to have the conversation: How can HR prevent more #MeToos?

Paul Salvatore
Paul Salvatore is HRE’s Legal columnist. He is a member of Proskauer's executive committee and a former co-chair of its global labor and employment law department. He can be emailed at psalvatore@proskauer.com.