Me Too Demands More than Risk Management

Me Too Has Changed the Cultural Landscape

In 2006, Tarana Burke founded the “MeToo Movement” in order to help women of color in low wealth communities openly acknowledge and begin healing from incidents of sexual violence in their lives. Close to a decade later, on October 5, 2017, the New York Times published an expose on Harvey Weinstein’s predatory and sexually offending behaviors. The revelation of Weinstein’s behavior and the subsequent exposure of predatory behavior by thousands of other male business leaders including Charlie Rose of PBS, and CBS’s Les Moonves, fueled a cultural explosion of pain, anger, and demands for action. The “#metoo” hashtag has now been utilized well in excess of 20 million times and the MeToo Era is here to stay.

The University of California, San Diego, Center on Gender Equity and Health recently published the results of a study that found that both women and men are impacted by sexual misconduct.

Encountered Verbal Sexual Harassment
Unwelcome Sexual Touching
Sexually Harassed Online
Physically Followed
Genital Flashing
Sexual Assaults

The Centers for Disease Control and Prevention’s National Intimate Partner and Sexual Violence Survey focused on physical harassment rather than verbal harassment.

Experienced sexual violence (other than rape)
1 in 2
1 in 5
Reported rapes or attempted rapes
1 in 5
1 in 67

Though both women and men have been impacted by sexual misconduct, the vast majority of egregious behavior has been inflicted on women. Since 2017, women all across America have organized; taken to the streets of our cities in protest and demanded change from our society with unprecedented commitment and persistence. For the first time, businesses have had to face and manage real consequences from sexual misconduct, including financial losses, reputational damage, squandered opportunities and reduced productivity. Today, for all businesses, paying lip-service to sexual misconduct is no longer going to be enough. Real change is not optional, it is required.

So where do these behaviors take place. Do they occur in the workplace, in other public places or in multiple locations? A survey conducted by the watchdog group, Stop Street Harassment’s looked at the typical, as well as less typical, locations where people say they have experienced some form of sexual harassment.

A public space
Own home
Nightlife venue
School, through 12th grade
By phone
Someone else's home
Mass transportation
A car
College or tech. school
Other location
Health care facility
Religious space
Taxi or Uber/Lyft

What this data indicates is that these negative behaviors can occur anywhere and, that most respondents have been subjected to harassment in multiple locations. In February of 2018 the New York Times reported that:

Quid pro quo sexual harassment — being pressed by someone to offer sex in return for something — was reported by 13 percent of the women and 5 percent of the men in the survey. This is one of two key legal prerequisites for being able to sue for sexual harassment, the other being a hostile work environment. Such quid pro quo behavior has figured prominently in the reports of sexual harassment and assault over the past several months.

Most significantly the Times also reported that:

The majority of women and men who experience sexual harassment and assault do not confront the harasser — fewer than 2 percent, the survey found. Instead, they choose avoidance: 23 percent of women said they altered their routes or daily routines to avoid harassment. One in 10 women and one in 20 men said they tried to change their job assignments or quit their jobs to avoid harassment. Only one in 10 women and one in 20 men filed an official complaint to an authority figure or the police about harassment.

Given the dichotomy between the number of incidences of sexual misconduct and the growing demand for societal seed change, companies are now facing the rapidly increasing, damaging implications of sexual misconduct in the workplace. The heightened awareness of persistent and repeated sexual misconduct by employees in every type of business has left Human Resources departments scrambling to revise and rewrite non-harassment policies and improve sexual harassment training for all their employees. Businesses simply can no longer afford to ignore such high-risk behaviors. In the process, many companies are learning that though the risk of psychological harm from abuse is tragic, it can be greatly reduced and even prevented in some cases with appropriate risk management strategies. One vitally important tool is a Fitness for Duty Evaluation and Report.

What is Fitness for Duty?

Fitness for Duty (FFD) is a term that, when properly understood, has enormous potential implications for the morale, reputation and overall success of any organization. FFD refers to a person’s ability to adequately meet the responsibilities delineated in the job description of the position that an employee was hired to fulfill. While doing so, the employee is also expected to maintain a respect for the needs and well-being of co-workers, managers and customers and to conduct business unfettered by any personal issues that the employee may have. Professionalism is a term closely related to fitness for duty. Professionalism is a character trait that encompasses a respectable work ethic, the ability to take direction from superiors, and an automatic regard for others’ boundaries. One unfit employee can cause significant legal, financial and reputation problems for a company.

When personal issues, often manifested as boundary issues, begin to interfere with an employee’s professionalism in the workplace or with the organization’s public reputation, then a Fitness for Duty Evaluation could be invaluable in determining the best next steps for an employer to take. These next steps could range from in-house counseling, to referral for treatment and dismissal. However, to be of value to a business and its employees, FFD evaluations must be conducted by a thoroughly trained and highly experienced behavioral health professional. There are many highly trained behavioral health professionals available but, very few have gained the invaluable insight one gets from years of experience evaluating and treating perpetrators and victims of sexual misconduct.

For the past 15 years, I have specialized in conducting comprehensive, empirically based, fitness for duty evaluations in cases referred by licensing boards, regulatory agencies and a diverse group of businesses and professional organizations. While I’ve evaluated hundreds of employees for substance abuse disorders, I also have developed a particular specialty in the evaluation of professional misconduct in the workplace, including sexual violations and/or substance abuse issues.

For more than a decade, I’ve conducted Fitness for Duty evaluations for the Archdiocese of Los Angeles in response to the sexual abuse scandals that have engulfed the Catholic Church world-wide. Interestingly, the Archdiocese has taken steps that go beyond just investigating priests accused of abuse. They now require all priest candidates to undergo a Fitness for Duty evaluation prior to entering the seminary. For both types of evaluations, I utilize interviews and test data in order to determine if the individual is able to perform the essential functions of their position in a manner that is safe for themselves, co-workers, clients, or the public. When appropriate, therapy may be recommended for some offending priests and for priest candidates whose evaluations indicate the potential for abuse.

So how would this process work at your company of business?

Fitness for Duty Evaluations & Reports

FFD evaluations and reports have been used for more than four decades by licensing agencies, governments and employers to assess and manage a broad range of a behavioral health issues. Prominent examples of this practice would be:

  • State medical and dental associations (the licensing agencies for doctors and dentist)
  • Commercial Airlines (for pilots, air and ground crews) have not only use these reports to deal with employee behavioral health issues, FFD Assessments and Reports are also a vital component to ensuring public safety
  • Government & Military Services have used FFD evaluation to assess employees’ and servicemen’s fitness before and after a broad range of deployments to determine any negative or detrimental effects of that deployment on individual’s fitness to accept and succeed on a new assignment.

Each company/organization needs to determine for itself when an FFD evaluation would be appropriate.
In some cases: after one (or two) warnings for such things as showing up hungover, getting into an argument with a manager, complaints about unwanted touch, or inappropriate talk, a company may require an employee to submit to a Fitness for Duty evaluation or face dismissal. Other situations (e.g. substantiated sexual harassment or physical violence against co-workers or customers/the public), would, of course, would have more serious implications including potential legal charges and responsibilities.

This range of possibilities raises questions that companies need to answer. Are all sexual misconduct offenses of the same severity? Are single instances of inappropriate verbal communications the same as inappropriate touching or sexual assault? Is a single instance of inappropriate behavior the same as a pattern of inappropriate conduct? Some employers would answer yes to these questions but, many other employers would not. Companies must also figure out how to appropriately respect the claims of alleged sexual misconduct victims while balancing the rights of the accused to due process.

If the claims of a victim are confirmed, what should the company do? If there is a zero-tolerance policy for all types of complaints, the accused employee will be terminated. But, is that appropriate and in the company’s best interest in all cases?

One way for employers to gain greater clarity and insight into a case is to engage the services of a highly qualified behavioral health specialist to conduct a Fitness for Duty Report to:

  • Confirm  or reject the findings of an initial investigation
  • Recommend corrective actions to be taken by the company
    • Job performance monitoring
    • Job reassignment and/or demotion
    • Termination
  • Determine Fitness for Duty of an accused employee
    • Mental health status (diagnosis from the DSM)
    • Identification of behavioral issues of the accused
    • Suggested treatment for the accused
    • Likelihood of repetition of the behavior by the accused

A FFD evaluation may uncover psychological or behavioral impairments that were not present or apparent until the alleged incident (e.g., a hidden drinking problem or domestic strife interfering with performance). In these cases, an empathic, supportive response might be appropriate. The employee would be given the option to accept a referral to treatment, perhaps with limited medical leave, as an alternative to dismissal. Some cases or situations would have more serious implications (e.g. substantiated sexual harassment or physical violence against co-workers or customers/the public.

Unsubstantiated accusations present the most difficult cases for employers. However, even in these instances, an FFD evaluation could help determine whether the organization is dealing with an employee’s personal issues, or whether the employee is reacting to dysfunction in the work environment. Recommendations would then be made based on the issues uncovered in the FFD could be enormously helpful in determining whether to:

      • Maintain an employee on the payroll
        • No action
        • Changes in managerial style and increased upper management oversight in the workplace
        • Treatment for the employee(s)
      • Dismissal for the employee (with or without severance pay)

But given increasing public awareness of sexual misconduct and the recent willingness of more victims to step forward, it is inevitable that the number of cases being reported to companies will increase significantly over the next few years. Increased reporting of complaints will in turn lead to even greater risk exposure for companies and raises important questions for business leaders to answer.

  1. What should companies do to prevent the formation of hostile work environments and to prevent or minimize sexual misconduct in the future?
  2. What policies, procedures and processes need to be instituted by companies to address any issues raised when sexual misconduct cases are reported?

Sexual Misconduct in the Corporate Environment

Finding the most effective answers to these questions, before a company becomes involved in a sexual misconduct case, is the ideal scenario. But unfortunately, most companies don’t have that luxury. All too often, one of a company’s most significant challenges can be to adopt the necessary strategies, policies and procedures while dealing with employee complaints in real time.

In the past, the general societal trend has been to diminish the claims of sexual assault victims (more often than not women) and to support the denials of accused perpetrators (more often than not men in positions of authority). As we have all witnessed through media coverage of high-profile cases, the answer for many observers has been simple: believe the women. In some of the more outrageous public cases, this approach can even seem like a no brainer. But most accusations of misconduct are not that clear cut and, even in cases where the accusers’ claims appear to be indisputable, how do companies balance support for victims with due process for the accused? Ignoring or minimizing the concerns of victims and accused perpetrators can leave companies in extreme jeopardy. So, what are fair and prudent remedies to address the concerns of all parties including employers?

Question 1 – What should companies do to prevent the formation of hostile work environments and sexual misconduct in the future?

Though employment laws can differ greatly state to state, all states already have laws requiring sexual harassment training and education. In response to increased demands for stronger protections for employees, California has recently changed its laws to require all companies (with 5 employees or more) operating in the state to provide two hours of sexual harassment training and education to all supervisory personnel each year. All other staff are required to attend one hour of training every two years. Companies have been given until January 2020 to fully implement these policies.

Certainly, training is a good start. Increased awareness of inappropriate behaviors in the workplace and clearly articulated codes of conduct, effective reporting policies and support from company management and Human Resources (HR) departments should help to reduce bad behavior with coworkers and encourage victims to report misconduct. Though training will be helpful and, over time, may reduce the number of complaints, it is not likely to ever eliminate all disputes between victims and accused perpetrators. That means companies need to carefully and thoroughly answer Question 2.

Question 2 – What policies, procedures and processes need to be instituted when these cases are reported?

This is not a simple question. The answers for any individual company will depend on the broad range of factors that drive the businesses and effects its employees. At a minimum companies must consider:

  • Type of business being conducted
  • Company employee factors
    • Age of workforce
    • Gender balance
      • Management team
      • Staff
    • Ratio of management to staff
    • Workplace(s)
      • Corporate Office
      • Field Office(s)
      • In home office(s)
    • Travel requirements
  • Who are the company’s clients / customers
  • What types of contact do clients / customers have with company employees?
  • Company history of sexual misconduct

These examples barely scratch the surface of the complete number of issues that any business must now consider when forming HR policies and codes of conduct for their employees. To accomplish that task effectively, each company will need their management and HR teams to review every aspect of their business to ensure that their codes of conduct, policies and procedures can meet the needs and concerns of their employees. It will also likely require companies to partner with an employment attorney to ensure it is in compliance with state laws for every jurisdiction where the company has employees. But we cannot address all of those factors in this document. The issue we are addressing in this document is: what methodologies are available to investigate employee complaints of sexual misconduct or a hostile work environment.

  1. How should a company investigate and assess the validity of a sexual misconduct or hostile work environment complaint made by an individual or group of employees?
  2. During the investigation, how do you balance respecting the rights of an accuser while providing due process for the accused?
  3. Once an investigation is completed and the charges have been substantiated, what is the company policy to deal with an employee who has been found to have sexually harassed another employee(s)?
  4. Is there a zero tolerance policy for all types of inappropriate behavior?  Should all employees found guilty of that behavior be immediately terminated?
  5. Or should the consequences of each case be determined on a case-by-case basis?
  6. What happens when the results of an investigation turn out to be inconclusive?
  7. What are the range of consequences or corrective actions for the accused employee?
  8. Should there be consequences for an accuser whose claims turn out to be false or malicious?

Options for Investigation of Accusations of Sexual Misconduct

Employee Investigations

Today, in most cases when an employee files a sexual misconduct complaint with a supervisor or with Human Resources (HR), the company will have their HR department conduct a preliminary review. If the case appears to have merit, the company can:

    A. Conduct a full investigation themselves and take corrective actions with the accused and the accuser (if indicated)
    B. Turn the case over to an employment law firm/specialist to conduct an independent investigation of the charges

If the case is already high profile (within the company or in the media) and/or, in some cases, if the case involves a very senior executive, the company may want to bypass an internal preliminary HR review and immediately refer the case to an employment law firm to conduct an independent investigation. Having an outside law firm conduct the investigation can eliminate or greatly reduce even the perception of a conflict of interest between the company and the accused employee.

However, Fitness for Duty Evaluations can provide companies (and their law firms) with a third option when investigating claims of sexual harassment or hostile work environments. While this option may not always eliminate the need to retain expensive outside legal representation, it does provide far more facts, context and nuance for a particular case. A Fitness for Duty Report can also provide other benefits to the accused, the accuser and the company. Whether or not a company has a zero-tolerance policy toward for employees found to have exhibited inappropriate sexual behavior, the Fitness for Duty Report can provide sound guidance for determining consequences, corrective actions and treatment recommendations regardless of the employee’s employment status.

Fitness for Duty Evaluations as a Screening Tool

Like the Archdiocese of Los Angeles, some businesses and organizations are finding that fitness for duty issues related to sexual misconduct can largely be prevented with proper, state-of-the-art screening at the time of hiring. Online criminal background checks are ubiquitous, and effective to a point, as an initial screen. As we all know, these are hardly sufficient in themselves; many workplace problems occur despite such screenings. But, a comprehensive FFD evaluation, in addition to such cursory screenings and the applicant’s interview process, adds an extra layer of protection. A notable example of their use in these regards is the Catholic Church, which, in response to widespread sexual abuses perpetrated by numerous priests over several decades, has now incorporated FFD assessments into their standard admission protocol for priest candidates. The Church also refers priests with questionable behaviors for these evaluations.

Fitness for Duty Evaluation Process

Though formats for Fitness for Duty (FFD) Evaluations and Reports can vary, most recognized processes in place today include the following major elements. (See Index for detailed outlines)

    I. Inform the Accused of the complaint and investigative
    II. Interview the Accused
    III. Administer Psychological Testing
    IV. Review all Documentation (submitted by the accuser and the accused to HR or an independent investigator)
    V. Contact and Interview all Collateral Witnesses
    VI. Evaluate the Data and Write the FFD Report
    VII. Provide Feedback to the Accused
    VIII. Provide Feedback to the Company

There are multiple steps for each of the elements listed above which can be found in the white paper on my website. Some FFD evaluations may require additional steps to address all the facts of a particular case. Once the all the data and testing results have been gathered and reviewed by the behavioral health professional conducting the FFD evaluation, a detailed report will be prepared for review with the accused and the company.

The FFD Report is far more than a simple listing of the facts of the case. It provides considerable important context for the company to consider when making a judgement on the guilt or innocence of the accused and the accuracy of the claims made by the accuser. The report will include a detailed personal history of the accused (provided by co-workers, friends and family) which may provide insight into both the possible motivations for the behavior in question and most importantly recommendations for appropriate consequences and corrective actions to be taken. This information may also provide clues as to whether a particular accused employee may be likely to repeat the behavior with other employees. For companies not utilizing a zero-tolerance policy, an FFD report can inform the company’s decisions on consequences and corrective actions.

In a limited number of cases, the results could actually indicate that the charges made by an accuser appear to be false, exaggerated and/or even malicious. The accuser may be seeking revenge for a bad performance review, a missed promotion or a salary increase the accuser believed was insufficient. In these cases, the employer may also want or need to conduct an evaluation of the accuser who has made false or misleading claims. These false accuser evaluations could prove invaluable to a company should the employee originally accused of wrongdoing decide to take legal action against the company and the accuser.

The workplace landscape has changed, transformed by the power of the #MeToo movement to raise public awareness in all corners of our society. As with all sea changes, those who adapt and embrace the changes will be both beneficiaries and benefactors of the paradigm shift. This particular change in societal values and perspective is one that gives primacy to the ethical treatment of all, regardless of position or status and is long overdue. When workplace ethics are called into question, there’s a lot at stake: the well-being of individual employees, the overall morale and productivity of the business, the company’s reputation, and potentially adverse financial consequences.

Laura Dorin, PhD

Dr. Dorin has over a decade of experience in helping determine, via a comprehensive evaluation, the plausibility and merits of allegations that call into question a current employee’s fitness for duty or a potential employee’s fitness for duty. During that time, she has assisted individuals and organizations needing guidance when faced with uncertainty arising from accusations of unethical workplace behaviors. Dr. Dorin completed her undergraduate work in psychology at UCLA, received her M.A. in Clinical Psychology at Pepperdine University and her Ph.D. in Clinical Psychology at California Graduate Institute in Los Angeles, CA where she obtained psychoanalytic training in early attachment, object relations theory, and the assessment and treatment of primitive psychopathology.

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