You may have heard the latest findings regarding the Dallas Mavericks workplace culture. In Feb 2018, Sports Illustrated release a story regarding the “corrosive culture of the Dallas Mavericks”, which describes several decades long sexual harassment by several top executives, including the CEO. Women were subject to sexually graphic comments, inappropriate touching and countless other sexually explicit behavior. In recent days, findings of an independent investigation by Krutoy Law PC and Lowenstein Sandler, were released. The investigation confirmed this behavior had been going on since the 90’s.
Mark Cuban, who is the owner of the Dallas Mavericks, has denied knowledge of any such behavior since the initial story was released in early 2018. While it remains to be seen if any civil action will be taken by the victims, I can’t help but wonder what the ramifications would be if this were a small organization, not owned by someone worth billions of dollars. Cuban has agreed to donate 10 million dollars to various organizations and was not otherwise punished by the league. I argue that any other business owner not worth billions of dollars, would not be so lucky.
As I listened to Mark Cuban’s interview and the subsequent press conference, all I could recite in my head was “the law doesn’t allow ignorance as an excuse”. I fear people who see this story and business owners may get the wrong impression. As a business owner, and even a member of management or human resources staff, you can be held personally liable should you be in this situation and get sued. And trust me, if your organizational culture was like this for decades, you would get sued. A suit that could even bankrupt smaller businesses.
So you say you have a Harassment policy and train your employees? Well, having a policy isn’t enough. Conducting Harassment training isn’t enough. Not only must your employees understand and have access to the policy, they must understand what types of behaviors aren’t allowed, they must understand the process of how to report incidents and they must understand the consequences of their behavior. Often during the onboarding process, employees are given stacks of papers, including various policies that they must “read and sign”. Hopefully someone is explaining at least the basics of these policies but I wonder how many people really pay attention or even remember their first few days at a new job? Most people are very nervous and overwhelmed by all the new information coming at them that first day. So saying, “my employees signed a document stating they read the policy and understand it”, but that simply isn’t enough.
The goal of policies is to set expectations and to establish rules so that everyone is able to work in a positive, productive environment, free from harassment. A policy shouldn’t just be something checked off the list during onboarding.
All policies should be reviewed often. Any updates should be distributed to employees utilizing multiple media outlets. Training on topics such as Harassment should be done annually, and I don’t mean showing the same video from 1990 with outdated irrelevant situations. While the behavior at the Dallas Mavericks was blatant and shocking, harassment isn’t always that blatant. It’s imperative you open up dialogue in the workplace about exactly what is acceptable and unacceptable. Use realistic examples. Remember to include behavior on texting and social media. Make sure everyone knows the policy, the expectations and the methods in which they can report bad behavior.
I have no doubt the Dallas Mavericks had a policy prohibiting harassment and retaliation. However, the most important lesson we can learn from this and many recent events, is that employees must have a safe and confidential way to report Harassment. Setting up a hotline is one such way. This can be as simple as designating a phone number with voicemail set up or a designated email, which only one or two people have access to. Additionally, employees should be able to have access to multiple levels of management and/or Human Resources to report this behavior. Don’t limit your employees to only the HR Director or only the Operations Director. Employees should be able to tell a member of leadership with whom they feel comfortable. Mark Cuban is famously accessible to his fans, so why wasn’t this behavior reported to him? If your employees don’t feel safe, they won’t report the behavior.
Most companies have an open door policy, but do your employees really feel safe if they need to report harassing behavior? What if the behavior involves the employee’s direct supervisor? Or in the case of the Dallas Mavericks, harassment from the CEO? Open door policies will only work if there are multiple levels of leadership available, including the owner.
In 23 years in HR, I have received countless complaints about alleged harassment. I can tell you most people are extremely uncomfortable reporting behavior like this. They may feel embarrassed or angry or even worried that somehow they have done something to perpetuate this behavior. Even in the worse cases I’ve heard, most people don’t want to “get someone else in trouble”, they just want to work in a good environment, not cause problems and don’t want any conflict. This is why finding a safe, secure and confidential option for your employees to report harassment is a must!
Once you have decided upon an avenue for employees to report behavior, you then must have a contingency plan on how and to whom the information gets reported. Complaints of harassment must remain confidential to the extent possible. So having a good flowchart of who needs to be notified, based on the type of harassment complaint, is vital. Ignorance is not a defense. If any level of management is aware of illegal behavior, they as well as other members of management can and will be held personally liable in a lawsuit. The law assumes as a member of management, if you knew or should have known that the behavior was happening, you are liable.
Ignorance is not a defense.