On December 6, 2017, U.S. News & World Report published “What to Wear to Work,” a discussion of workplace rules and dress codes.  The article explored the legal permissibility of dress codes and instances where neutral dress code and appearance policies can run afoul of state and federal law.  The article featured J.J. Conway, Esq.  as a legal analyst for the national publication. The online version article may be found here,  https://money.usnews.com/money/careers/company-culture/articles/what-to-wear-to-work.

No one should ever be subject to sexual harassment in the workplace. That is both state and federal law.  It is also a matter of basic morality.

With the explosion of sexual harassment revelations that have occurred during the past year – what some are now calling “Hurricane Harvey” – employers and employees are, again, confronting one of the most challenging problems in the workplace.

Sexual harassment usually stems from a bizarre psychology.  The complaints that have become public are not only offensive, but many of the allegations are strange.  The allegations against Harvey Weinstein, for example, make one wonder if, had he not been a powerful executive at a major production company, would he have been a playground flasher or peeping tom?  These are the actions of disordered persons.  The only difference is one seeks out victims in public places.  Weinstein, by contrast, apparently performed his stunts in a $5,000 a night hotel room at the Peninsula Hotel in Beverly Hills.

Similarly, Bill O’Reilly must have confronted real, hard evidence (not mere allegations) that would have proven he did something unspeakable or so damaging to his brand that it was better to pay $32 million to secure a confidentiality agreement than to have the evidence made public.  Previously, O’Reilly had been tape recorded using graphic and vulgar language during phone calls. No one pays $32 million to settle a “frivolous” lawsuit.  Plenty of lawyers would be willing to “vigorously” contest the allegations for fees of 1/100th that amount.

In the sexual harassment cases our firm has handled, it has been remarkable how many times the case was resolved when we moved to have the harasser examined by a forensic psychologist. Sexual harassment is not always what it seems. Clearly, there are cases where persons in management or coworkers use the workplace to try to secure dates or romantic adventures, but in many cases there is no actual sexual attraction to the victim. It is often about bullying a person whose vulnerability is somehow revealed in the workplace. The victims tend to have certain identifiable vulnerabilities that bring out the inner bully in certain management types or coworkers.

For example, the workplace harassment is visited upon a single mother who is trying to date again, or an employee is struggling with weight and body image issues, or, perhaps most unsettlingly, a person who has been subject to bullying and putdowns all their life.

The cruelty of bullies doesn’t disappear when a person gets a promotion or makes a lot of money.

It is one of the reasons that the number of complaints against a harasser is important.  Again, to be clear, all sexual harassment, even a single situation, is unlawful. The reason that the number of complaints matter is that it is evidence of a pattern and practice.  It is also suggestive of evidence proving the occurrence of the conduct is more likely than not to have occurred.

The women who have come forward against Weinstein, O’Reilly, and recently Matt Lauer have rightly been called “courageous” and “brave” because most employees understand that human resources departments are totally useless in sexual harassment cases.  Generally, H.R. doesn’t like problems, and a complaint of sexual harassment certainly qualifies as one. Given H.R.’s ineffectiveness, this also highlights why the large number of complaints is revealing.   First, if H.R. were on the ball, this likely would not have happened (think of the now dead Roger Ailes at Fox, where he was the H.R. department).

The large number of complaints is also reflective of basic human nature. Human nature suggests that repeat patterns of behavior are associated with desired results. For all the complainants who have come forward there are likely many, many more who fell victim, submitted to the advances, and carry with them feelings of guilt and shame.  This fact has remained largely unspoken during these public cases, but it is safe to assume that if ten complaints are made public, there are likely many more which no one will ever know about.

Charlie Rose likely didn’t invite women to his house in the evening and put a robe on in one solitary occasion. Based on the allegations, we know that Harvey Weinstein didn’t conduct a meeting in a hotel room with a robe on and a shower running just one time.  Bill O’Reilly didn’t book hotel rooms where company events were being held on just one occasion.  Matt Lauer went so far as to have a button installed on his desk to lock his office door remotely when women were present.  It is unlikely that Lauer pushed that button only one time.  Likely, these acts were part of a pattern that had worked before, and these men thought it would work again.

What is truly troubling, beyond all the numbers of victims, is just how premediated it all seems.  Perhaps, this has been the greatest revelation of all.  Harassers think through the harassment.  It also seems that many employers knew about the premediated harassment and did little to stop it. This is now the new challenge in the workplace.  Employers must not simply work to make the workplace free of sexual harassment, but seek to identify and break down the patterns which enable it in the first place.