When To Approach HR In Sexual Misconduct Cases And When To Avoid Them

By Laurie Girand

I’m With Them, an organization which connects victims of sexual misconduct who have been victimized by serial perpetrators, has reviewed hundreds of Codes of Conduct of the top companies in the country. Many open by urging employees to begin with a report of wrong-doing to one’s manager or to Human Resources. When is this practical? If it’s not practical, what should you do?

Sexual misconduct is the term given to three forms of unwanted sexual encounters associated with the workplace: physical assault of a “sexual nature,” non-physical harassment of a “sexual nature,” and gender discrimination.

Was the experience rape, near-rape, or physical assault?

Under these circumstances, your first priority should always be your well-being. Reach out to RAINN, the national sexual assault hotline, at 1-800-656-4673. They have information and supportive resources including healthcare, attorneys and law enforcement. Remember: rape and sexual assaults are crimes.

Was the experience a one-off?

The broad legal definition of sexual harassment leaves room for someone to make a mistake. A single, clumsy, unwanted romantic gesture or a single compliment about appearance is treated differently than multiple come-ons, overt intimidation, quid pro quo, or comments that are too-intimate or obviously sleazy. 

Many organizations have Codes of Conduct that say employees and colleagues are to be treated with respect; report violations of these basic tenets of proper work behavior. Women in this more “grey area” of sexual harassment tend to err on the conservative side, hoping the experiences will blow over. If you are considering reporting, you’ve likely hesitated for long enough.

Is the Perpetrator Higher in the Organization, in HR or Legal/Compliance?

When the perpetrator has power, it’s unclear that your report will be met with sympathy in HR, particularly if the perpetrator is actually in HR or has authority for defining ethical conduct, also known as compliance.    

Look for signs that upper management has taken a strong stance against sexual misconduct such as when Richard Handler and Brian Friedman, CEO and President of Jefferies said, “We can control how we act and behave.” 

Contrast such messaging with Google’s, where management identified credible sexual misconduct claims against Head of Android Andy Rubin, but sent him away with a $90 million package, and then allowed Chief Legal Officer David Drummond to stay on for months after his misconduct was outed by a former Google employee, the mother of his child.  

Should you feel the perpetrator has significant support and power, you’ll want to determine whether you can remain anonymous while reporting. If you can retain your anonymity, you’ll want to report to the Audit Committee of the Board of Directors of a publicly held company; many companies have anonymous reporting systems that are supposed to ultimately reach the Audit Committee, but sometimes the review process flows through Human Resources or Legal/Compliance beforehand.  

You can write a physical letter and address it to the Audit Committee of the Board. Another resource is AllVoices.co, which allows you to make an anonymous report into the company at a higher level. 

Otherwise, if you are prepared to no longer be anonymous, we would recommend obtaining advice from an employment attorney, who can make recommendations specific to your situation.

Is it likely the perpetrator has acted this way with others?

If the perpetrator has offended or harassed others, HR may be the right place to report misconduct. It’s possible HR has already put the perpetrator on notice and is waiting to see if they have changed. It’s also possible HR is waiting to hear from additional people about this person’s behavior. You may only have part of the puzzle that shows how they are harming the company, and HR will need to know.  

Your organization doesn’t have an HR

U.S. law provides you with the right to a hostile-free work environment. It also protects you from retaliation if you assume the role of a whistleblower. Unfortunately, grey area exists around what rises to the level of “hostile.”  

Small organizations, where managers are likely to be less savvy about laws are ripe with the potential to engage in unfair employment practices. Nevertheless, the cost of proving your situation can be high. Presuming you can’t get satisfaction from your own manager or the perpetrator is your manager, it is best to get the advice of an employment attorney and to contact the Equal Employment Opportunity Commission.  

You’ve decided to report to HR

Know that many HR departments are incentivized to reduce friction in the organization, and some HR employees may not be trained adequately to respond with tact, concern and what is called “Institutional Courage.” Take copious notes of what is said by HR in meetings (be careful about recording anyone without getting legal advice first; different states have different laws about recording without consent), and after meetings, by other parties who learn of the situation. Is the tone sympathetic and focused on the perpetrator’s behavior? Or is it antagonistic or focused on adverse outcomes for you? If antagonistic, seek the advice of an employment attorney.    

What if the perpetrator doesn’t work for your employer?

HR is likely to be your ally in the face of sexual misconduct by your company’s supplier or customer. This is especially a time to involve HR as the repercussions have the potential to have financial implications for your employer. If you encounter sexual misconduct in an interview, recognize you do not want to work at a place that hires predators. You can write a letter to the Chair of the Audit Committee or, in a smaller organization, to the legal department or to investors such as venture capitalists.  

HR ignores or deflects your concerns

HR and managers have been known to say, “You don’t really want to cause trouble,” “This could go badly for you”, and also “Boys will be boys,” as the Chair of the Anesthesiology Department at Yale’s Medical School reportedly said when dismissing reports of harassment against a colleague. Sometimes people make these dismissals out of ignorance of the law; sometimes they make dismissals naively thinking they are protecting you from a painful investigation; sometimes they make dismissals based on their impression of how past sexual misconduct was (mis)handled. Regardless, you are entitled to a hostile-free workplace and protection from retaliation.  

Important resources when you are considering reporting sexual misconduct are: I’m With Them, which connects victims and survivors of sexual misconduct by the same perpetrator, has a directory of anonymous reporting systems at large companies, and has a list of examples of successful misconduct reporting; Time’s Up Legal Defense Fund, which can help pay legal fees and costs and connects people to and helps pay for media and storytelling assistance; and WorkplaceFairness, which has resources and a search engine for employment attorneys.

If we’ve learned one thing about perpetrators from #MeToo, it’s that they often use the same approach to target multiple people. When you draw attention to sexual misconduct, you are not just protecting yourself and making your workplace a healthier environment for all; you are protecting others the perpetrator would target in the future.

Laurie Girand is the founder and President of  I’m With Them, a nonprofit website that privately connects victims of work-related sexual misconduct by a common perpetrator. She began her career in technology as a graphic systems software engineer, and after graduate school, worked at Apple Computer as an Evangelist and Product Manager. She subsequently started a consulting firm, providing strategy and product launches to companies including Adobe, Digital Equipment Corp., Netscape, Novell and Sun in the 1990s. Girand holds a BSE in Electrical Engineering and Computer Science from Princeton University and an MBA from Stanford.

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