Executives Cannot Rely on HR to Prevent Harassment Lawsuits

Two devils playing with fire
“…’ism’ devils play with fire.”

“‘I’m here so that this company doesn’t hire someone like me to come in and destroy your career.'” That’s the ear-catching line a successful litigator of harassment lawsuits uses to get the attention of executives glued to their phones when he is introduced as a speaker. Mark Baute is quoted in an article in The Atlantic exposing the dismal record of human resources departments at preventing financial damage from harassment, and I don’t mean just from lawsuits.[1]

Writer Caitlin Flanagan asks, “If HR is such a vital component of American business, its tentacles reaching deeply into many spheres of employees’ work lives, how did it miss the kind of sexual harassment at the center of the #MeToo movement? And given that it did, why are companies still putting so much faith in HR?” She attended an HR conference and spent a year interviewing experts including HR lawyers and consultants, and decided she had been wrong. HR is doing exactly what top managers expect it to do, she realized: Try to protect them from lawsuits. Those “leaders” aren’t trying to prevent the harassment that leads to those lawsuits.

She quotes Gretchen Carlsen, who sued Roger Ailes of Fox News, as telling women at a conference: “’HR is not your friend. HR will not help you.’” This is not largely HR’s fault, however. (I should disclose I am a former member of the Society for Human Resource Management.) At the conference Flanagan kept asking why HR had not been successful at reducing harassment. The consistent answer was they had no power to move against anyone who had significant status in the company. Those cases were taken out of HR’s hands.

As she says, the #MeToo movement is just another proof over 30 years that attempting to prevent harassment through policy manuals, annual trainings, and HR referrals has failed. Flanagan mentions a U.S. Equal Employment Opportunity Commission (EEOC) report on workplace harassment published in 2016.[2] I read it and was struck by some figures it repeats from an insurance company report, which should make small business owners catch their collective breath. A U.S. company has at least a 1-in-10 chance of receiving a complaint at the EEOC, and a 20% chance of losing the ensuing action, in which case they averaged $125,000 in losses each including legal costs. But get this: Even if the company won, it had the case hanging over its head and taking up work time for an average of 275 working days! You can bet, too, the liability insurer of a sued company raised their rates (or dropped the company), win or lose.

It is true the occasional sad person will make false harassment claims, so you should investigate before taking action. But proven instances of that situation pale numerically against the huge number of incidents that never get reported. Studies found by the EEOC task force indicated 70% of harassment victims do not file an informal complaint, and as high as 94% do not file a formal one. They have good reasons. “One 2003 study found that 75% of employees who spoke out against workplace mistreatment faced some form of retaliation,” the report says. One of the task force witnesses reported a series of racial harassment incidents, and was fired as a result

A cynical manager might ask, if people are afraid to report, why should I be afraid of a lawsuit? But it’s a numbers game. The more people there are not reporting, the more likely it is someone eventually will. When that happens, to protect your company and your job (if not for loftier reasons), start from the assumption the victim is telling the truth. Even if that’s the only report, it’s probably the tip of a large iceberg.

This points to less obvious costs. The EEOC report describes at some length the substantial proof that harassment leads to absenteeism, lower productivity, and voluntary turnover, each of which creates a financial burden on an employer. For example, it says, “In 1994, the Merit Systems Protection Board conservatively estimated that over two years, as a result of sexual harassment, job turnover ($24.7 million), sick leave ($14.9 million), and decreased individual ($93.7 million) and workgroup ($193.8) productivity had cost the government a total of $327.1 million.” I ran that figure through an inflation calculator and it translates to roughly $500 million in today’s dollars. And this probably doesn’t account for the work time the harasser is wasting on bothering their victim(s).

HR cannot stop these losses, due to its limited tools and power. Managers from the top down have to do it. It is incredibly easy to make ethical arguments for not hassling someone, or making business decisions based on their demographics, or letting subordinates do so. Apparently, that hasn’t worked. So instead I’m going to offer a position of pure practicality:

  • Your job as a manager is to help workers be as efficient and effective as possible.[3]
  • Both harassed and harassing employees are not as efficient and effective as possible.
  • Therefore, if you allow harassment, you are failing as a manager.

The issue is complex, but that bottom line is really simple. At least for your career, if nothing else, don’t let the “ism” devils play with fire.


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[1] Caitlin Flanagan, “The Problem With HR,” The Atlantic, July 2019, https://www.theatlantic.com/magazine/archive/2019/07/hr-workplace-harrassment-metoo/590644/.

[2] Chai R. Feldblum and Victoria A. Lipnic, “Select Task Force on the Study of Harassment in the Workplace” (U.S. Equal Employment Opportunity Commission, June 2016).

[3] Chuck Williams, MGMT9: Principles of Management, Ninth edition (Boston, MA: Cengage Learning, 2017).

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