CBS chief executive Les Moonves recently has been accused of sexual harassment dating back 20-plus years.
Should he be held accountable for acts of misconduct happening many years ago?
The #MeToo movement has empowered others to bring forward allegations of harassment, including those dating back many years. For acts of harassment that are older, employers are struggling to determine the consequences of the behavior.
Anytime an employer receives a complaint of harassment, it must be investigated, regardless of the length of time since the conduct allegedly occurred.
Under federal discrimination laws, a current or former employee has only 300 days to file a charge of discrimination with the Equal Employment Opportunity Commission. The charge must be filed within that timeframe to pursue any rights under federal discrimination laws.
State laws could apply, especially in a sexual battery complaint.
Even though the statute of limitations to file a federal discrimination complaint may have passed, the employer still needs to address the allegations.
In the case of Moonves, one woman claims that she was sexually assaulted over 20 years ago, and that her career was impacted as a result of her rejection of the advances, according to a New Yorker article from last month. She also claimed that, at the time, she told others about the assault.
While this might be credible information validating her allegations, fairness needs to be provided to everyone involved.
An employee should not be terminated on mere allegations.
The company has an obligation to conduct a fair and impartial investigation into the allegations – and CBS is doing that. CBS hired two outside law firms to investigate claims of sexual misconduct from several women spanning decades at the company.
While the case may be a he said/she said, it is the job of the independent investigator to determine the truth of what happened.
Thus, regardless of the length of time that has passed since the behavior allegedly occurred, employers should investigate all allegations of harassment or misconduct, and determine what happened.
For older complaints, there might be a difference between the need for an investigation and the consequences. Stale allegations of off hand remarks or inappropriate conduct likely will be treated differently than recent allegations.
However, if the investigation uncovers allegations of sexual assault or quid pro quo harassment, these acts of misconduct cannot be ignored and need to be addressed with serious consequences.
Quid pro quo harassment occurs when the person in power demands certain sexual favors in exchange for consequences. If the employee refuses the advances and then suffers tangible consequences – such as not getting promoted – the employer is strictly liable, if the employee files a charge within 300 days from the date of the consequences.
Regardless of the statue of limitations, if someone’s life was truly impacted by the misconduct of an individual, regardless of how senior the offender or how long ago, the perpetrator needs to suffer serious consequences.
If the investigation reveals more minor acts of misconduct from many years ago, the employee should receive a written warning. The employer investigating acts of misconduct from many years ago should also make an effort to determine if there are any recent acts of misconduct.
The workplace has evolved over the years, including more recently, to address harassment in the workplace.
Employers need to address not just current issues, but also allegations that may be barred from litigation, but still require an investigation and possible consequences.