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Matt Lauer 2012 Shankbone 2
You were expecting, maybe, an FMLA post today?

Another one bites the dust.

[cue music]

Just minutes before the Today Show went live yesterday on NBC, network chairman Andy Lack released a statement saying that a colleague had come forward reporting “inappropriate sexual behavior” from host Matt Lauer. Many news outlets reported the bad behavior took place on a trip to the Sochi Olympics in 2014.

And just like that, the host of the Today Show for 20 years, who was making $25 million per year, was fired. Lauer’s co-host, Savannah Guthrie, announced the firing on air.

Since news of the termination rocked the country, Variety reported here that several other women had accused Mr. Lauer of sexual harassment, including one allegation in which “he summoned a different female employee to his office, and then dropped his pants, showing her his penis. After the employee declined to do anything, visibly shaken, he reprimanded her for not engaging in a sexual act.”

And TMZ just released video of Matt Lauer being a total creep.

A “tipping point” in workplace culture.

Lauer’s termination comes on the heels of a number of (in)famous men accused of sexual harassment. The New York Times has been compiling a list, which ironically, includes of its own employee. Sadly, the list needs updating.

Speaking Tuesday with Bloomberg TV, Hewlett Packard Enterprise Co. Chief Executive Officer Meg Whitman said that the recent sexual misconduct revelations could indicate a “tipping point” in workplace culture.

But, what does this mean for your workplace?

Well, since this is an employment law blog, let’s stop for a second and check in on what the law has to say about sexual harassment.

Absent situations in which an employment decision is conditioned upon submission to sexual advances, also known as quid pro quo harassment, sexual harassment falls under the “hostile work environment” umbrella. That has five elements:

  1. intentional discrimination because of one’s sex,
  2. behavior that is either severe or pervasive,
  3. the discrimination detrimentally affected the plaintiff,
  4. the discrimination would detrimentally affect a reasonable person in like circumstances, and
  5. the existence of respondeat superior liability [meaning the employer is responsible].

In situations where a supervisor harasses and there is no tangible employment action (e.g., the employee is fired), once a company learns about discrimination in the workplace, it can avoid liability provided that it satisfies two criteria. First, the employer must exercise reasonable care to correct promptly any harassing behavior. Second, the employer must show that the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. This is called a Faragher/Ellerth Defense.

Faragher/Ellerth Defense often helps companies avoid legal liability in situations where employees wait months or years to complain about sexual harassment. Even when an employee does promptly complain about sexual harassment or other forms of discrimination at work, the company can escape liability as long as it takes steps that are reasonably designed to stop the complained-of behavior.

So, let’s assume the first person whom Matt Lauer allegedly sexually harassed promptly reported the behavior to NBC Human Resources. And, after investigating, NBC concludes that Lauer did engage in the complained-of behavior. But, instead of firing him, it suspended him instead. Under the law, the could very well be reasonable under the circumstances — even if Lauer engaged in the same behavior after the suspension. (Of course, the second disciplinary step may need to be a termination in order to be reasonably designed to end the harassment.)

But, what the law requires may not align with what’s best for your workplace anymore. Most of our employee handbooks preach “zero tolerance.” But, we haven’t always practiced what we preached.

However, what we’re seeing now is that, unless you’re in politics, accused sexual harassers aren’t getting any more second chances.

How can HR tackle the problem of sexual harassment at work?

No one said this was easy. On the human side, how does one reconcile one’s fondness professionally for a co-worker who, seemingly out of the blue, is accused of bad behavior?

I’ll leave the psychology for others to explore.

Over at the SHRM Blog, my friend Jonathan Segal has a nice post about The Role of HR in Smashing Harassment. I’ve preached C-Suite training and other prophylactic measures. Indeed, that’s the lowest-hanging fruit.

Over at her blog, Screw You Guys, I’m Going Home, my friend Donna Ballman has a different take. She blogs here about how critical it is for HR to rethink workplace investigations in addressing sexual harassment at work. According to Donna, this starts with the premise that the victim is telling the truth. It also involves expanding the scope of the workplace investigation. And, ultimately, it must include meting out appropriate discipline that truly sends the message that the complained-of behavior is inconsistent with the morals and values of your workplace.

That’s not easy. But, I’m here to help.

It just so happens that I have a training module designed to help HR with workplace investigations. And since I’m still feeling generous after yesterday, I’m going to give that training away to one — nah — let’s make two non-client companies who email me. If you’re local, I’ll train your HR team in person. If you’re not local, we can do it via video conference. (And if you miss out on the training, I have the feeling we’ll cover Matt Lauer in this free webinar next month.)

Now, hurry up and email me before my bosses remind me that free training isn’t exactly simpatico with the “billable hour.”

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