Workplace Harassment

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You may have seen the headlines regarding companies coming under fire for failing to investigate allegations of harassment raised by employees. The company names are familiar: Fox News, Uber, and jewelry stores Jared, The Galleria and Kay Jewelers. There is a legal obligation for an employer to conduct a prompt and thorough investigation of reports of workplace harassment. Many companies make bad decisions when it comes to dealing with workplace harassment, leading to lawsuits and bad P.R. Attorney Jeffrey Brodin, who specializes in workplace investigations, will tell us more.

TED SIMONS: FOX NEWS, UBER AND JEWELRY STORES JARED, THE GALLERIA AND KAY JEWELERS HAVE ALL BEEN THE SUBJECT OF EMPLOYEES ALLEGATIONS REGARDING WORKPLACE HARRASSMENT. THERE IS A LEGAL OBLIGATION FOR AN EMPLOYER TO CONDUCT A PROMPT AND THOROUGH INVESTIGATION OF REPORTS OF WORKPLACE HARASSMENT. MANY COMPANIES MAKE BAD DECISIONS THE ISSUE CAN LEAD TO LAWSUITS AND FURTHER HARRASSMENT. HERE TO TALK TO US IS P.R. ATTORNEY JEFFREY BRODIN, WHO SPECIALIZES IN WORKPLACE INVESTIGATIONS. GOOD TO SEE YOU THANK YOU FOR BEING WITH US.

TED SIMONS: LET'S GET A DEFINITION HERE. WHAT EXACTLY IS WORKPLACE HARRASSMENT?

JEFFREY BRODIN: ITS SUBJECTING AN EMPLOYEE TO CONDUCT THAT'S ILLEGAL. BE IT, SOME TYPE OF HARASSMENT THAT AFFECTS THEIR JOB PERFORMANCE, THEIR JOB CONDITIONS BASED ON A PROTECTED CLASS: RACE, GENDER, SEXUAL ORIENTATION, ANY NUMBER OF THE PROTECTED CLASSES. IT'S HARASSING THAT EMPLOYER, SUBJECTING THEM TO HOSTLE ENVIRONMENTS, BASED UPON THOSE CHARACTERISTICS.

TED SIMONS: SO WE ARE TALKING ABOUT RETALIATION, WERE TALKING DISCRIMINATION, AND HARRASSMENT, THE WHOLE NINE YARDS.

JEFFREY BRODIN: YEP

TED SIMONS: ARE THESE INSTANCES INCREASING?

JEFFREY BRODIN: THE RECENT REPORT FORM THE EOC SHOWS THAT THEY HAVE NOT DECREASED. OVER THE LAST 30 YEARS, ITS AS PREVALENT AS EVER.

TED SIMONS: IS THAT SURPRISING TO YOU? CONSIDERING HOW.. EVERYONE WHO GETS HIRED ON A JOB HAS TO GO THROUGH SOME SORT OF TRAINING, DO THEY?

JEFFREY BRODIN: IT IS SURPRISING BECAUSE THERE CERTANTLY IS TRAINING, AND THERE'S BEEN A LOT OF MEASURES TAKEN OVER THE YEARS TO TRY TO ADDRESS IT. BUT WHAT HAS BECOME CLEAR IT'S NOT WORKING. AND SO THE QUESTION NOW IS, SO WHAT'S GOING WRONG, WHAT'S MISSING AND WHAT ARE PEOPLE NOT DOING CORRECTLY, SO THIS CONTINUES.

TED SIMONS: THE LEGAL OBLIGATION OF THE EMPLOYER IN SUCH A SITUATION IS WHAT?
JEFFREY BRODIN: FIRS THEY HAVE TO HAVE A POLICY AND PROCESS PLACE, SO THAT IF HARRASMENT IS OCCURING IN THE WORK PLACE A PERSON, AN EMPLOYEE KNOWS WHAT THEY CAN DO AND WHERE TO GO. AND IT ALSO HAS TO HAVE A PROCESS IN PLACE SO THAT WHATEVER THE ALLEGATIONS THAT ARE RAISED ARE DEALT WITH APPROPRIATLY. AND DETERMINE WHAT APPROPRIATE IS THROUGH THE PROCESS. THE NEXT THING THEY HAVE TO DO IS, IS IF IT IS SOMETHING THAT NEEDS TO BE INVESTIGATED THEY HAVE TO DO A PROMPT AND THROUGH INVESTIGATION.

TED SIMONS: IT'S SOUNDS LIKE A LOT OF COMPANIES ARE MAKING BAD DECISIONS WHEN IT COMES TO ADDRESSING THE ISSUE. WHAT'S GOING ON?

JEFFREY BRODIN: IT'S THAT SECOND PIECE WHERE I THINK EMPLOYERS FAULTER, BUT MOST OF THEM HAVE THE POLICY IN PLACE, THE PROCEDURES IN PLACE, IT'S WHAT HAPPENS WHEN THE ALLEGATIONS ARE RAISED. DO THEY INVESTIGATE IT INTERNALLY? DO THEY GO TO AN EXTERNAL INVESTIGATOR? THOSE DECISION POINTS ABOUT WHAT TO DO WITH THE INFORMATION, IS WHERE THEY REALLY TEND TO SCREW UP.

TED SIMONS: HOW OFTEN TO THE ALLEGATIONS LEAD TO LAWSUITS?

JEFFREY BRODIN: I DON'T HAVE A PERCENTAGE ON IT, BUT THEY VERY OFTEN, IF IT'S A SERIOUS ALLEGATION, SUCH THAT IT REALLY GETS EVERYONES ATTENTION, IN THE COMPANY FIRST AND THEN THEY MAKE THESE DECISIONS DO WE GO OUTSIDE WITH THIS? DO WE INVESTIGATE INTERNALLY, WHO DO WE USE? THOSE ALLEGATIONS ARE TYPICALLY HEADED FOR A LAWSUIT AND SO EVERY STEP OF THE RESPONSE OF THE EMPLOYER AT THAT TIME, HAS TO BE WITH THAT IN MIND. AND WITH THAT IN MIND, MEANING, THAT THEY NEED TO MAKE SURE THEY ARE DOING EVERYTHING RIGHT. SO THAT IF IT ENDED UP IN A LAWSUIT, THERE DEFENSES READ EVERYTHING RIGHT. IT'S NOT WHAT THE CONDUCT WAS THAT STARTED EVERYTHING TYPICALLY, THE EMPLOYERS LIABILITY IS DEPENDENT RELIES ON WHAT DID YOU DO WHEN YOU KNEW ABOUT IT? AND THAT THEREFORE IS ENCOMPANT UPON THE EMPLOYER TO DO EVERYTHING RIGHT THEN. TO REALLY CROSS THEIR "T"S AND DOT THEIR "I"S. IF IT DOES END UP IN A LAWSUIT DOWN THE ROAD, THEY CAN SHOW THAT THEY DID WHAT THEY WERE SUPPOSED TO DO.

TED SIMONS: LET'S TALK ABOUT SOME HIGH PROFILE COMPANIES THAT MIGHT NOT HAVE DONE WHAT THEY WERE SUPPOSED TO DO, WE'LL START WITH FOX. WORKERS ARE MOCKED, THEY'RE THREATENED, THEY ARE PASSED OVER, THEY'RE FIRED, THESE ARE THE ALLEGATIONS. THEY SOUND LIKE FAMILIAR ALLEGATIONS. WE HEAR A LOT ABOUT THIS WHEN WE HEAR ABOUT WORKPLACE HARRASSMENTS.

JEFFREY BRODIN: YES. AND THE DIFFICULTY WITH FOX WAS THAT IT SOUNDS LIKE IT WAS A PERVASIVE CULTURE. WHEN IT CAME WITH THE TOP WITH THE CEO ROGER AILES, WITH THE ALLEGATIONS, AND THEN YOU HAVE THE STARS LIKE O'REILLY SHOW AND NOW ONE EVER BEING HELD ON THE CARPET ON THESE THINGS. AND ACTUALLY SEEMED LIKE IT WAS CONDUCT THAT WAS PROMOTED AND CERTAINTLY PART OF THE WORKPLACE CULTURE THAT WAS OK.

TED SIMONS: YEAH, A COUPLE DOZEN, I THINK, HARASSEMENT CASES FOX IS NOW FACING HERE.

JEFFREY BRODIN: THEY'VE SETTLED ALREADY. IT'S HARD TO KEEP TRACK BECAUSE THERE ARE MORE ALL THE TIME THAT COME OUT. SOMETHING LIKE OVER 40 MILLION DOLLARS CALIMES AGAINST AILES, AND 5 WOMEN WERE PAID 13 MILLION DOLLARS TO SETTLE WITH O'REILLY. AND THERE'S STILL ALL KINDS OF LAWSUITS, STILL GOING ON.

TED SIMONS: AND THIS, A: BAD DECISIONS, BUT B: WITH DECISIONS ABOUT O'REILLY ESPECIALLY, WERE TALKING ABOUT A HIGH EARNER HERE, SOMEONE WHO RETURNS A LOT TO THE COMPANY. I WOULD IMAGINE IN A LOT OF INSTANCES, MANAGEMENT IS CAREFUL WITH THESE KINDS OF FOLKS.

JEFFREY BRODIN: SURE, I THINK ONE OF THE PHRASES THAT I HEARD REFERENCE TO THIS IS, FOX, IN THIS SITUATION WHERE THEY ISSUES WHERE RAISED SHOULD BE KIND OF THE POLICEMAN, BUT IN THOSE SITUATIONS THEY'RE THE WINGMAN, NOT THE POLICEMAN.

TED SIMONS: OH MY GOODNESS. UBER HR DEPARTMENT SYSTEMATICALLY IGNORED CLAIMS. THIS IS THE UBER PROBLEM, IS THAT A COMMON PROBLEM?

JEFFREY BRODIN: DEFINITLY, I THINK THE UBER EXAMPLE, BECAUSE IT'S LOWER LEVEL EMPLOYEES, SO IT'S THE TYPE OF THING THAT CAN HAPPEN AT ANY WORKPLACE. YOU DON'T TYPICALLY HAVE THE CEO INVOLVED IN THESE THINGS. UMM.. BUT IT HAPPENS. THE UBER SITUTATION IS, THEY HAVE AN EMPLOYEE, FRONT LINE ENGINEER EMPLOYEE, SHE RAISES ISSUES THAT WERE PRETTY DIRECT SEXUAL HARASSMENT BY HER SUPERVISOR AND HR WAS SUPPOSED TO INVESTIGATE IT. BUT REPORTEDLY, FROM HER BLOG POST AFTER SHE WAS FIRED, THEY DIDN'T DO ANYTHING ABOUT IT. OR WHAT THEY DID ABOUT WAS JUST, PRECIOUS LITTLE.

TED SIMONS: IT SOUNDS AS THOUGH SHE WAS FIRED AFTER INFORMING HR, THAT THERE MIGHT BE OTHER ALLEGATIONS.

JEFFREY BRODIN: EXACTLY.

TED SIMONS: THAT'S NOT RIGHT!

JEFFREY BRODIN: NO IT ISN'T AND IT'S ILLEGAL.

TED SIMONS: YES! ALRIGHT THE KAY AND JARED JEWELERS THE CORPORTE CULTURE, THIS SOUNDS LIKE THIS WAS A BACCHANALIAN FESTIVAL. THIS JUST SOUNDS LIKE CRAZY TIMES HERE, ON RETREATS AND VACATIONS AND TH0SE SORTS OF THINGS.

JEFFREY BRODIN: ABSOLUTLY. THERE ARE NUMEROUS WITNESS STATEMENTS THAT HAVE COME OUT THAT, THAT CASE IS BEING ARBITRATED. THAT HAVE HIT THE NEWS, IT'S A FAIRLY OLD CASE AT THIS POINT THERE WERE HUNDREDS OF EMPLOYEES WHO SAID THAT THEY WERE SUBJECTED TO DIRECT DEMANDS FOR SEXUAL FAVORS FROM THEIR BOSES, SEXUAL HARASSMENT JUST IN THE DAY TO DAY GROPING, BANTER. THAT IT WAS REALLY PROVASIVE THROUGH ALL THE STORES AND THAT AGAIN INVESTIGATED INTERNALLY AND NOTHING DONE WITH THAT.

TED SIMONS: AGAIN, ONE THING ABOUT THIS CASE THAT I FOUND FACINATING, THE NEW HIRES WERE TOLD THEY HAD TO WAIVE THEIR RIGHTS TO BRING ANY KIND OF SUIT AGAIN THE EMPLOYER IN A PUBLIC SETTING, THEY HAD TO GO TO PRIVATE ARBITRATION. IS THAT LEGAL?

JEFFREY BRODIN: THAT IS LEGAL IS IT'S CRAFTED APPROPRIATLY AND IT'S FAIRLY COMMON PARTICULARLY IN RETAIL THAT THE ASSOCIATES ARE ASKED TO SIGN, AS A PART OF THEIR NEW HIRE PROCESS AN AGREEMENT THAT SAYS, IF THEY HAVE A CLAIM ANY DISCRIMINATION OR HARASSMENT AGAINST THE COMPANY THEY WILL FILE IT AND IT WILL BE SUBMITTED TO ARBITRATION, THEY WON'T GO OUTSIDE.

TED SIMONS: BUT WHAT GOOD COMES FROM A PRIVATLY LEGAL BINDING DECISIONS?

JEFFREY BRODIN: EMPLOYERS LIKE THEM BECAUSE IT TAIMS IN IT SOME WAY. ONE, THEY KNOW WHAT'S GOING ON, THAT THEY REALLY DON'T DO IT TO GET OUT OF THE CLAIMS. THE APPROACH IS TO HAVE MORE OF AN EFFICENT PROCESS. SOMEONE BRINGS IN A CLAIM, WE CAN GET AN ARBITRATOR IN, WE CAN GET IT TAKEN CARE OF, PUT IT BEHIND US. WHERE AS, IF IT WERE TO GO THE EEOC PROCESS WITH OUTSIDE AGENCIES THOSE THINGS CAN TAKE A REALLY LONG TIME.

TED SIMONS: AS FAR AS THESE ALLEGATIONS FAIING TO STAND UP IN COURT, COMMON, NOT COMMON? ONCE THESE GET TO COURT DOES THESE USUALLY WIND UP IN SOME KIND OF RESULT AGAINST THE EMPLOYER?

JEFFREY BRODIN: FIRST, ITS VERY RARE FOR AN EMPLOYMENT CASE TO GO TO COURT.

TED SIMONS: INTERESTING.

JEFFREY BRODIN: IF IT GETS FAR ENOUGH, THAT YOU KNOW, THERE ARE SOME BAD ACTORS, SOME BAD FACTS, THEY SETTLE. BECAUSE THE DOWNSIDE IS SO HIGH FOR THE EMPLOYER. AND TYPICALLY THEY'RE THE TYPE OF CLAIMS THAT YOU CAN PUT A DOLLAR FIGURE ON THEM. SO, YOU DON'T WANT TO GO TO A JURY WITH SOME BAD FACTS ABOUT SOMEONE BEING HARASSED IN THE WORKPLACE. NO EMPLOYER REALLY WANTS TO BE IN THAT SITUATION. SO TYPICALLY THEY SETTLE. BUT THEY CAN GO PRETTY FAR, BEFORE THEY HIT THAT SETTLEMENT.

TED SIMONS: LAST QUESTION, IT'S A REPEAT OF ONE OF MY EARLER QUESTIONS. SHOULDN'T THIS STUFF BE COMMON KNOWLEDGE BY NOW?

JEFFREY BRODIN: IF SHOULD BE. I THINK WE'RE THE COMMON KNOWLEDGE IS LACKING, IS THE COMPANIES HOLDING THEIR SUPERVISORS AND LEADERS ACCOUNTABLE. AND BY ACCOUNTABLE, BOTH IN KIND OF THE DAY TO DAY. IF THIS COMES ACROSS YOUR DESK, IF YOU HEAR ABOUT IT, BY GOD IT'S PART OF YOUR JOB TO DO SOMETHING ABOUT IT. AND IT SHOULD BE PART OF THEIR EVALUATION PROCESS AND ALSO THAT WHEN IT DOES GO FURTHER SOMEONE DOES BRING IT FORWARD, THAT THEY LOOK LONG AND HARD AT WHO SHOULD INVESTIGATE THIS. WE CAN'T RELY ON OUR HR PEOPLE MOST OF THE TIME, BECAUSE THEY'RE BUSY THEY HAVE A BUSINESS UNIT THEY ARE SUPPORTING. ARE THEY REALLY GOING TO INVESTIGATE THAT BUSINESS UNIT, IT REALLY CALLS FOR BRINGING SOMEONE IN FROM THE OUTSIDE WHOSE OBJECTIVE.

TED SIMONS: IN-HOUSE COUNCIL CAN ONLY GO SO FAR, ESPECIALLY IF YOU ARE DEALING WITH A HIGH RETURNER.

JEFFREY BRODIN: AND IN-HOUSE COUNCIL, YOU DON'T WANT TO REACH A PRIVELEDGE THERE, THEY SHOULD BE ADVISING FROM THE LEGAL PERSPECTIVE AND BRINGING IN AND OUTSIDE INVESTIGATOR TO REALLY, WHAT YOU WANT TO DO, IS HAVE SOMEONE COME LOOK AT THE FACTS AND COME BACK WITH THE OBJECTIVE FINDINGS AND THEN THEY CAN DECIDE WHAT TO DO WITH THEM.


TED SIMONS: ALRIGHT, GOOD INFORMATION. GOOD TO HAVE YOU. HERE ON HORIZON, WE'LL HEAR ABOUT A NEW DRUG TO TREAT ALS.

Jeffrey Brodin: Attorney, Brodin HR Law

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