After 30 years of advising employers, conducting sexual harassment investigations, and defending companies sued for discrimination and harassment, I have developed a list of suspicious behaviors that I see repeatedly among sexual harassers in the workplace.
I don’t think of myself as precogniscent of whether a person is actually a harasser or not prior to investigating a complaint, but I have repeatedly seen what I would call these “red flag” behaviors that certainly make it more likely that a supervisor may be accused of harassment at some point.
From the stories in the press about the sexual misconduct of Harvey Weinstein, Roger Ailes, and others, it appears from witness statements that many of these warning signs were present and ignored by their companies before the complaints about their misbehavior finally came to light.
Red flag behaviors that employers should take very serious notice of even before a harassment complaint is filed include:
- Any inappropriate remark at work by a supervisor that has racist, sexist or other prejudiced overtones;
- Criticism directed towards employees of one gender, one race, those of different religious beliefs, etc. and not towards ones of the supervisor’s own gender, race or religion;
- Comments by a supervisor that are often about an employee’s or applicant’s appearance or personal attributes rather than work-related competence;
- A supervisor who verbally hits back aggressively when challenged by someone “beneath” the supervisor;
- Unprofessional online behavior, such as forwarding questionable emails or viewing porn at work;
- Attempts to cover tracks, for example, by using a texting service like Snapchat that quickly destroys messages for what are allegedly work-related conversations;
- Flirting by a supervisor, even if it seems harmless, that makes the object of the flirting uncomfortable;
- A supervisor who complains repeatedly about his/her marriage and acts like the victim in that relationship;
- Supervisor dating a subordinate;
- Supervisor who can’t be trusted to behave correctly around alcohol, such as during the company Christmas party or softball game;
- Gifts given by a supervisor to a particular subordinate and not to others; and
- The settlement of a prior sexual harassment complaint for an eye-popping $32,000,000 before the employer has to pay to settle five other claims. Let’s just call that one the O’Reilly Factor.