Date: December 5, 2017

The David Pakman Show, a current-affairs video podcast, interviewed TELG's Scott Oswald about the law behind a recent string of sexual misconduct allegations against public figures. Scott also discussed employers' broad legal responsibilities toward their employees in situations involving harassment — their obligation to protect workers, and their obligation to respond to complaints.

"We all ought to expect from our employers that [they're] going to create that safe space for us. I mean, the law requires that."

R. Scott Oswald

When Is Sexual Harassment a Crime?


When Is Sexual Harassment a Crime?

(Transcribed and edited for readability by The Employment Law Group)

David Pakman (host): I’m joined today by attorney Scott Oswald, who represents employees, has litigated nearly 50 trials to verdict — and we’re going to be talking today about some different elements related to the recent string of sexual harassment and sexual assault allegations that we’ve seen. So first, speaking very generally, Scott — and it’s really great to have you …

R. Scott Oswald: Thanks for having me.

Pakman: … when we talk very generally about the term “sexual harassment” or “sexual assault,” not everything that falls under that umbrella is necessarily criminal. Is that right?

Oswald: Yeah that’s exactly right. I mean, any kind of offensive touching most certainly would be, in most jurisdictions. But you know, the kinds of things that we see in the workplace all the time — things like boorish behavior, jokes that are sexually tinged — can [also] be a violation of our employment laws and certainly, for employers, create real problems, potentially, when unchecked.

Pakman: So when we talk about what is potentially criminal and what is not, and how employees who — at least in the work place — are being targeted or victims of this type of behavior or actions, what’s important for employees to know? When potentially am I supposed to be talking to the police, and when are these [better treated as] human resource matters that need to be dealt with?

Oswald: Yeah, I think if we want to draw a bright line — and it’s not always easy to do so — I think we certainly can start with touching. Any time there is physical touching that is offensive, and certainly if it [comes] with some kind of sexual proposition, that is out of bounds. And in most cases, if it is unwanted, that may be something that would require outside examination, including potentially a criminal charge.

I think we can use our common sense, too. Anything where there is a sexual assault, as an example, that certainly would warrant potential … law enforcement involvement. [For] other kinds of things in the workplace, it’s always a good idea to notify the company — because the company has an obligation, David, to actually create a safe and healthful workplace. And if they don’t do so, that company can be liable.

So it’s always a good thing to notify the company right away if you think that something has happened in the workplace that you think just isn’t quite right.

Pakman: Can you talk a little bit about how power dynamics influence how a lot of these incidents are dealt with by employers? Because we can all imagine a situation where, if there is a C-level executive, for example, or someone that is above human resources in the organizational chart, who is maybe engaging in some of this behavior, we can all imagine [that] going to human resources is not necessarily going to be an experience where human resources will be an unbiased arbiter of what took place, if they also are subject to those exact same power dynamics. So can you address how that might be managed in some way?

Oswald: Well, first off, to begin with, that’s a bad system. And anytime human resources is reporting into a person, or persons, that they then have to investigate — I mean, that’s just a recipe for impotence.

Societies like the Society for Human Resource Management, [or] other employer organizations, [recommend] systems … where you can report, for instance, outside human resources [channels] or maybe anonymously to the board [of directors] when you feel as if human resources is influenced inappropriately by someone above them that might be involved in the harassment.

But I think generally that the first place to go is human resources — and the reason I say that, David, is that the law says that. Our Supreme Court has said that. When an employee notifies his or her human resources department, and does so promptly, and does so in a specific way, the law then will protect them.

The key, though, is to make sure people in the company are aware of what’s going on, and doing so as soon as you possibly can.

Pakman: We know from experience that there is a degree of stigma in society about coming forward and saying I was a victim of X, Y, or Z. Can you talk a little bit about, from a legal standpoint, how statutes of limitations can actually create an issue when there is a delay in coming forward? But also about ways in which it doesn’t matter, in which claims are just as valid later [as] they would be immediately after an alleged incident.

Oswald:You know, I think that’s really important because there is this stigma … out there — this sense that, if I’m coming forward, I necessarily am a victim, I’m the one who should be blamed.

And I think it should be just the opposite.

The reality is that, in the employment space in particular, we all ought to be on equal footing and certainly we all ought to expect from our employers that [they’re] going to create that safe space for us. I mean, the law requires that. And so there is nothing wrong about coming forward and I think it’s an employer’s obligation to make that very clear to its employees.

So how does an employer do that? I think the best way is really in training.

The employers that routinely train their employees — and I’m not talking about just some sort of online module where you go and you check some boxes, but real training where you bring employees in and you explain to them the importance of coming forward and notifying the company so the company can do something about bad actors and create that safe space — [those employers can] make it very clear to employees that the company will take any complaint seriously; will move quickly to investigate; will take prompt corrective action; [and] will potentially remove that employee that’s been a sexual harasser, as an example, from the workspace.

So it really is the company’s obligation to remove that stigma — to make employees feel as if, if they come forward, they’re going to be lauded, and they’re going to be listened to, and not retaliated against.

Pakman: So that certainly tells us about how the employer can manage circumstances when there have been allegations which create an environment where people are comfortable coming forward and saying, “Hey, here’s what happened.”

I got a call from one of our viewers last week saying something along the lines of: “Hey, how can employers prevent sexual harassment in the first place?”

And I think that that’s difficult. I mean my reaction was [that], if by the time you’re an adult and you get hired somewhere, you don’t yet know that it’s not okay to do these things, I don’t know how much an employer can really do.

Can you talk about that a little bit?

Oswald: So the first thing is to make sure the people you let in the door know those things. Background checks. Careful review of references.

What we’re seeing, I think, in each one of these instances in the media, is that these are not one-off situations. These are men that seem to do this over and over and over again. So they develop a reputation. And if an employer does its job in vetting employees at the outset, especially senior people that they’re bringing in, to make sure that they are not individuals who have a track record of doing these types of things, I think that’s critical.

So the first —

Pakman: How do you do that though? Because presumably, I mean I’m just thinking through — like, OK, you check references very carefully. You can’t necessarily go and talk to people that were managed by your applicant, right? Because more than likely their references are either colleagues or people senior to them or, in C-level cases, maybe even boards of directors.

How can you say — how can you get access to, I guess, the people who might actually know or be willing to talk about that prior track record?

Oswald: So I think the first place is those previous employers. And what we’re seeing is employers know a lot more about some of these people than maybe they let on at the outset. So, getting releases from prospective employees and saying, “Look, we are going to contact your former employers and we’re going to ask lots of questions.” That kind of careful review of the person’s background at least puts us in a position that, if it’s known to a previous employer, you’re going to uncover it.

You know, even in situations where a former employer is reluctant, maybe, to go into all the details, they’re going to send you signals. For instance, you might ask, “Would you hire this person again? Would you rehire Mr. X for a position of trust?” And if you don’t get the right answer, that’s someone that you need to stay away from, as an example. I think it all begins [with] a thorough vetting of people that you’re bringing in to your organization — into your safe space.

And the second component of this is that, you know, you’re right, David: Clearly some people have not been — they haven’t had a proper upbringing in terms of what is OK and what is not. And so some people need to be taught.

I mean, [this is] just like [when] you bring people in and you teach them about your I.T. systems, you teach them about your culture in the company. [Here,] you teach them what is right and what is wrong — and, in particular, what is wrong in the workplace when dealing with your colleagues. What kinds of interactions you can [have] and what kind of interactions you shouldn’t have. Making sure that you’re not putting your employees in a position where they’re vulnerable.

When you are sending your employees offsite, as an example, let’s say for travel, I mean having very clear guidelines of what people should and should not do when they’re on travel. For instance, we’re seeing in the news … some people coming forward and saying, “Look, this is what happened to me when I was on travel with this person.” If there had been clear rules, guidelines, the do’s and don’ts when you’re away from the office, maybe those things wouldn’t have happened in the first instance.

So I think that the onus really is on the employer to set those guidelines — to make sure that they’re not having company events that are going late into the night [with] alcohol being served, as an example. These kinds of things. If you take a few of these steps to ensure that your people are, and continue to be in, safe spaces, then the chances that you’re going to have people who will slip is much reduced.

Pakman: We’ve been speaking with attorney Scott Oswald. He is an attorney who represents employees. He’s also managing principal of The Employment Law Group.

A very important and timely topic. Scott, thanks so much for talking to us about it.

Oswald: Hey David, you’re welcome. It is my pleasure.

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