Public shaming of workplace harassers may force employers to stop protecting them

Since the Harvey Weinstein scandal broke, a growing number of workplace harassment victims have decided to go public. Since this used to be pretty rare, it marks an important shift.

Along with the torrent of harassment revelations through the #MeToo Twitter hashtag, employees have gone public with harassment accusations against top figures in journalism, state politics, the restaurant industry and even the labor movement.

Many are wondering if the #MeToo movement will offer lasting benefits for workers affected by harassment. I think it could.

After working as a lawyer defending companies in employment lawsuits and now as a researcher, I gained some insight into how employers make disciplinary decisions after an internal investigation – and why they have a tendency to keep high-ranking harassers on the payroll.

The increased willingness of victims to go public with their accusations, however, may change the way companies feel about protecting a big time harasser.

Employers’ free hand

Title VII of the Civil Rights Act prohibits workplace harassment on the basis of sex, race, national origin and religion.

However, unlike other forms of discrimination, employers are not strictly liable for harassment. Instead, under a Supreme Court doctrine known as the Faragher defense, employers can sometimes escape liability by providing an avenue to complain and taking reasonable measures to prevent or mitigate further harm after an employee complains. The Faragher defense is especially applicable where the employee fails to use that avenue or delays in doing so.

The Faragher defense gives employers a lot of flexibility on handling the harasser after an investigation, as long as they do something, however superficial, to prevent future harassment. Sociologist Lauren Edelman calls this window-dressing “symbolic compliance.” So if a company considers a high-ranking harasser to be a valuable player, punishment may be perfunctory.

A 2000 racial harassment case from the United States Court of Appeals, Tutman v. WBBM-TV, exemplifies this problem. That case involved a CBS producer who told an African-American camera operator named Robert Tutman to “get the f— out of my office before I pop a cap in your ass,” used the n-word with reference to a movie title and “pranc[ed] around, derisively caricaturing African-Americans.”

CBS investigated and gave the producer a written warning, made him attend a workshop and forced him to apologize. Its sole concession to Tutman consisted of an offer to change schedules so he and his harasser would not interact.

The court concluded that CBS was not liable for the producer’s harassment since it investigated and offered a schedule change. Tutman, fearful for his safety, did not return to work. The producer apparently continued to harass others.

This same story plays out in sexual harassment cases.

In Indest v. Freeman Decorating, a sales executive made multiple crude sexual remarks and gestures to a subordinate and reacted angrily when asked to stop. After investigating, the employer gave him a written reprimand and a one-week suspension.