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Commentary: Why Some Sexual Harassers Get Fired—And Some Don’t

Host Matt Lauer of NBC's Today Show speaks with skier Lindsey Vonn during the 100 Days Out 2018 PyeongChang Winter Olympics Celebration - Team USA in Times Square on November 1, 2017 in New York City. Mike Stobe/Getty Images for USOC

Powerful men—like NBC’s Today host Matt Lauer—have dropped like flies in recent weeks amid a barrage of salacious sexual misconduct allegations. We stand at the precipice of a cultural watershed. Change is inevitable. But will it be change for the better? Self-righteous indignation at the alleged wrongs of those who hold the levers of power can be a delicious indulgence. But a meaningful cultural shift will elude us if we rush to judgment.

We must insist upon industrial due process for those accused of workplace misconduct. The bottom line is that employers are legally obligated to take seriously all complaints of sexual harassment. That obligation should not be construed as a ratification, or rejection, of any particular allegation. Taking a complaint seriously means recognizing that the way in which you handle it will change someone’s life.

Witch hunts undermine the integrity of our values and our laws. Fairness and impartiality are the touchstones of internal investigations. Corporate leaders and human resources executives can harness the power of these principles to reshape our work environment. The fairness of an investigation hangs in the balance between efficiency and thoroughness; responding promptly to a complaint does not mean reaching an immediate conclusion. It means assigning the matter to an independent investigator who develops and follows a strategic plan for assessing the allegations to determine whether they have merit.

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The trajectory of an investigation begins with examining the who, what, when, and where. These threshold questions determine whether a full investigation is warranted. Asking “Who?” means considering the roles of the complainant and the accused. Are they employees, vendors, customers, or clients? If the answer is yes, continue on. Asking “What?” means looking at the nature of the allegations. If they involve sexual or gender-based behavior, dust off the company’s policy for further guidance.

Although the “When?” and “Where?” are not as clear-cut, they are questions that employers should be prepared to address. How should an employer handle an allegation of sexual propositions dating back 20 years? Or an accusation about off-duty and off-site boorish comments? Fairness requires having in place parameters to identify the conduct that will trigger an investigation that could lead to disciplinary action. Policies should telegraph to employees when, and under what circumstances, their conduct will be scrutinized.

The present media frenzy seems fueled, in part, by a dearth of information about how harassment complaints should be evaluated. We have been watching these events unfold with a mixture of hope and horror. Hope that the media can do what the law has not—that is, effect positive change by shining a bright light on power abuses that perpetuate an unequal professional playing field. But horror at the public castigation of our fellow humans, some of whom have fallen with little or no apparent vetting of the allegations against them.

There is truth to the public sentiment that powerful men misuse power, but it is only a half-truth. We cannot presume that power is always misused. Nor can we presume that only men engage in misconduct. We must resist blurring the distinction between “allegation” and “substantiated allegation.” Consequences must be justified by dispassionate factual analysis. If this is to be the dawning of the age of accountability, we must hold all those who cast judgment accountable for doing so equitably.

Julie Moore and Marcie Vaughan are attorneys and HR consultants with Employment Practices Group and consultants with The Expert Institute.

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