My social media feed has been filled with stories about Harvey Weinstein and the sexual harassment and assault that has apparently been allowed to continue for decades, interspersed with mentions of the recent International Day of the Girl. What an interesting dichotomy. At the same time that we celebrate the fact that girls should not be limited in their aspirations or goals, and should not be scared simply because they are girls, we hear about the horrific treatment that aspiring young actresses have endured and are reminded that “being a woman remains the least safe you can be.”
As an employment lawyer, I have written and spoken about harassment and sexual harassment in the workplace innumerable times. When the Jian Ghomeshi scandal broke, the issue came to the forefront. To me, that was a good thing. As I often said, one silver lining in that situation was that more individuals were aware of the fact that they did not have to tolerate harassment at work, and more employers were aware that they should not condone it.
The Ghomeshi scenario was, sadly, far from unusual. While many organizations claim to reject harassment, the reality is that historically, many businesses (and even not-for-profit organizations) have allowed harassment and sexual harassment to continue if the perpetrator is someone with a significant value to the organization. They might be a “star,” a rainmaker bringing in substantial amounts of revenue, or the owner/boss.
Not long after the Ghomeshi scandal became public, I had to attend a funeral. Afterward, as I spoke with some of the people in attendance, the subject of harassment at work arose. Everyone in our group of approximately 10 people expressed their horror at what had allegedly taken place at the CBC. However, that was followed up by several stories about their own respective workplaces, each of which involved a senior member of the organization that was widely known to behave inappropriately. As one person said, “everyone knew that you would never let so-and-so work alone with a young female intern.” And yet in every case, the organization had turned a blind eye to the harassment for years.
Within the legal industry, this was not uncommon. While some of the stories may have been urban myths, my friends and I often traded stories about senior partners that would routinely reduce students and young lawyers to tears, verbally assaulting them and in some cases, throwing objects at them. There were also rumours of senior partners who engaged in sexual relations with junior lawyers, and questions about whether those junior lawyers were really willing participants. The common thread was that the senior partner was never reprimanded or removed from the firm, despite the fact that their behaviour was common knowledge.
Why do organizations allow this behaviour to continue? In some cases, it is simply a power imbalance. The harasser may be an owner (ie. Harvey Weinstein at The Weinstein Company), CEO or directing mind of the company that cannot (easily) be removed. It will be far easier and less “costly” to ignore the situation or remove the victim. Realistically, if human resources reports to the harasser, it will be impossible for them to do anything unless some higher power (such as a board of directors) is accessible and willing to take action.
In many cases, while no one will admit this and there is no “formal” analysis, it is essentially an economic decision. The powers that be explicitly or implicitly determine that the “costs” arising out of the harassment are worth absorbing due to the benefit the harasser brings. That benefit might be sales (ie. the rainmaker who brings in a substantial portion of the organization’s revenue), profile (the “star,” such as Ghomeshi), or the “genius” that creates the product/content.
Whatever the reason, the organization does not take steps to address the harassment or remove the harasser because the cost of doing so is perceived to be too great. Better to allow other, more expendable workers to endure harassment, sexual harassment and even assault. Better to risk a public relations disaster and even potential legal liability, if word of the harassment gets out, though they will do everything possible to prevent this. Look at the number of claims against Harvey Weinstein that were quietly settled.
On the bright side, we are seeing more harassers exposed and penalized than ever before. This includes Ghomeshi, Bill Cosby and now Weinstein. The silence can be broken, and the power of social media means that it is harder than ever to keep these things quiet. However, we still have a long way to go.
It is shocking to read about Weinstein’s history of harassment and abuse, and even more shocking to learn how many people were aware of it but chose to do nothing. That includes the victims. Their silence may have been understandable when they were vulnerable, but several of them have been established, high-profile stars for years; why did they not say anything before the story broke? The reality is that the harassment and abuse was allowed to continue until the company concluded that the cost was too great. That only happened when the harassment became public, and the perceived cost of keeping him outweighed the perceived cost of getting rid of him.
So how does this change? As I have said before, we have seen positive change in recent years. Harassment is not tolerated as it once was. However, before we can take even more significant strides toward eliminating harassment and sexual harassment in the workplace, we have to remove any notion that allowing such conduct, the damage it does to the victims and others, and the risk of liability, is all simply a cost of doing business. Harassment should never go unpunished, no matter who the harasser is.
Originally published by The Lawyer’s Daily.