A Movement against Sexual Abuse, #MeToo Reminds Businesses that Harassment is Illegal

Topics: #MeToo, Corporate Culture, Corporate Legal, Diversity, Gender Equity, Legal Executive Events, Talent Development, Thomson Reuters, Women’s Leadership Blog Posts

sexual harassment

Compliance officers and general counsel at corporations and businesses are told to surveil the landscape for a host of potential threats, such as red flags of actionable misconduct by clients, vendors, and even company insiders.

What the public #MeToo movement has done over the course of the past two years is remind people and companies alike that sexual harassment is yet another risk area to monitor and that any signs of its occurrence must be acted upon immediately, or if not, the business may suffer legal penalties and significant reputational damage.

At a time when women hold the top jobs at the New York Stock Exchange and Nasdaq, more women than ever are running for the nomination for president, and prominent male executives have fallen from grace in quite a public way with sexual harassment investigations trailing them, there is no excuse for businesses not to get their collective acts together.

Identifying It

If employees are not comfortable coming forward with their experiences of harassment in the workplace — or reporting those situations they witness — the company is already at a huge disadvantage. What makes employees willing to come forward depends on the organization having a speak-up culture, a strong accountability ethos wherein no top manager or star performer stands above the rules, and consistent messaging about the company’s zero-tolerance policy in this area.

This culture should include well-advertised, anonymous whistleblower hotlines, anonymous surveys about the workplace environment and sexual harassment specifically, and training on what constitutes sexual harassment which explicitly explains the firm’s code of conduct and reporting mechanisms.

Questions asked during in-person trainings in particular can be helpful in ascertaining the culture of the company and how well employees at all levels of the business appreciate what constitutes sexual harassment.


If employees are not comfortable coming forward with their experiences of harassment in the workplace — or reporting those situations they witness — the company is already at a huge disadvantage.


Bystanders in particular need to appreciate what constitutes inappropriate workplace behavior, such as sexist jokes, and how to report it. The fact that sexual harassment is not the easiest pattern of conduct to define is no excuse for not having the training, policies and procedures to deal with it.

Defining It

Sexual harassment is unlawful under U.S. law. It can encompass unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s gender.

For example, it is illegal to harass a woman by making offensive comments about women in general. Also, both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same gender as well.

An oft-overlooked element of sexual harassment that is this behavior might be unwelcome to others seeing or overhearing it, and it might, over time, create a climate in which the behavior becomes offensive in general. Of course, this does not mean that all office banter is prohibited; it just means that people need to use their best judgment and appreciate what is appropriate as a statement or an action in the workplace.

Some lines have to be drawn, and trainings and codes of conduct must outline those acts and expressions — right down to the type of calendars or pictures not allowed in the workspace, to the types of language and behavior that is never permitted.

Follow the Law… and Public Opinion

New York and California have created strong sexual harassment training mandates for the businesses located in those states. They require sexual harassment training for all employees, with California mandating it for businesses with as few as five employees.

Both states ban provisions of nondisclosure agreements (NDAs) (see here and here) in settlements that involve claims of sexual assault, harassment, or discrimination based on sex. These provisions have been known to shield harassers by forbidding victims from discussing the inappropriate behavior.

New Jersey has curtailed their use too, but its law is not just limited to sexual harassment, assault, or sex discrimination claims. It might seem shocking that these agreements are permissible; but confidentiality clauses crafted to suppress factual information in sexual harassment, discrimination, and retaliation claims have been around for a long time.


Harassment is a symptom of the larger problem disparity in the workplace; it often is a product of a discriminatory environment in which someone sees a right to engage in lewd behavior because the person on the receiving end is not deemed to be as powerful.


Investigations into the actions of former film producer Harvey Weinstein, Fox Chairman Roger Ailes, comedian Bill Cosby and CBS former Chief Executive Leslie Moonves unearthed NDAs that were used to silence women from making claims. (After the Weinstein Co. filed for bankruptcy, it released anyone who had signed an NDA as a result of sexual misconduct claims on the part of Mr. Weinstein.)

Such revelations about nondisclosure agreements has magnified the power imbalance between such claimants and those they are accusing, and NDAs have fallen into disrepute — even if still technically allowed in many jurisdictions.

In the area of mergers and acquisitions (M&A), there is an obligation on businesses to conduct sufficient due diligence to ensure there are no such incidents on the record or even percolating outside of the formal record, so such headaches do not become those of the new entity.

In fact, there is now a clause in M&A deals that has been dubbed (fairly or not) the “Weinstein Clause” that include attestations that sexual harassment claims have been divulged, investigated, or otherwise resolved, and money might be set aside to handle any ongoing claims.

Bottom Line

Harassment is a symptom of the larger problem disparity in the workplace; it often is a product of a discriminatory environment in which someone sees a right to engage in lewd behavior because the person on the receiving end is not deemed to be as powerful.

It loses its steam as a behavioral tendency when women are in greater positions of power; when businesses make the sexual harassment code of conduct accessible, well-advertised, and understood; and when no perpetrator is too important or too powerful — whether the company founder or its star dealmaker — to get a free pass.


Julie DiMauro will be part of an upcoming panel examining effective strategies for investigating sexual harassment claims at the 3rd Annual Corporate Risk, Ethics & Compliance Forum on September 26 in Chicago.


TRRI