United States: The Higher They Are, The Harder You Fall

You don't need to be a cable news network, a Hollywood production company, a media mogul or a politician in order to feel the ripple effect from the recent wave of workplace sexual harassment claims.  While such harassment claims might not always make the nightly news, they are nothing new and they impact every sector of employment.  With the current flurry of high-profile harassment claims attracting media attention regardless of the industry, employers should prepare for an increase in claims.

It could be members of your C-suite who think they are immune from action due to their position within the company.  Or possibly the Chair of your Board of Directors who doesn't believe he or she can be replaced.  Maybe a high-level rainmaker upon whom your firm depends for its financial survival?  Power can make people believe they are invincible and immune from any consequences for their bad behavior.

But they're not. 

Businesses of all sizes and in all industries must provide safe, harassment-free workplaces for all of their employees.  But they sometimes find that more challenging when the alleged harasser is a senior-level executive, someone who makes a lot of money for the organization, or who the organization feels it cannot succeed without. 

The fact is that organizations cannot succeed with these individuals if they are allowed to engage in unchecked sexual harassment.  The following are some of the more dicey questions related to how to address harassment claims raised against people in positions of power.

Q:        When a high-level and powerful executive is accused of misconduct, it can be difficult to find someone within the organization to challenge that person.  Maybe subordinates fear retaliation; maybe they simply do not want to "rock the boat."  Human resource professionals share the same concerns if they try to take action.  So, how should a company address such complaints?

A:        First and foremost, the individual complaining should be assured that the company will address the concerns.  And then the company must follow through with that assurance.  Companies get into significant legal troubles by either dismissing the concerns (e.g., "boys will be boys") or failing to take action when concerns are raised. 

Next, the company must conduct a thorough investigation.  In investigations of high-level executives, the company should consider retaining an outside investigator experienced in conducting sexual harassment investigations and who will not feel the pressure, imagined or not, associated with investigating someone who is "key" to the organization.  Conducting sensitive investigations of this type requires expertise, and should not be entrusted to just any investigator.

Q:        What if the company "knows" that the executive probably did what he or she is accused of, but is unwilling to do anything about it due to the executive's position within the company?

A:        There is a difference between "knowing" and knowing If it is a "gut feeling," then the investigation will determine if it is valid or not.  Senior executives have rights too, and may be targets for spurious claims. 

That said, once the company knows that misconduct occurred, or that there is enough information to support a finding that something inappropriate occurred (even if not to the degree of the initial complaint)—the company should take action. The action an employer takes is different in every case.  But whatever that action is, it must be significant enough to send a message that, regardless of the person's status, the conduct is not acceptable and will not be tolerated.  Sometimes, depending on the severity of the misconduct, termination may be the only solution.  Other times, demotion may be appropriate or less-severe discipline may be warranted.  The bottom line, however, is that the company must take reasonable steps to assure that the harassment stops.

Q:        How do you terminate high-level executives, such as a CEO, when it relates to something of such a personal nature?  It's not as though they embezzled or committed fraud upon the company.  Besides, they likely will claim that any improper conduct was mutual or consensual.  How do you handle the case of "a lover scorned?"

A:        In some respects, these situations may be worse.  Those executives abused their positions of power to suit their very personal desires, and are acting against the very interests of the company.  Their conduct could very well cost their organizations more than any one individual executive is worth, both in potential adverse media attention and definitely in terms of potential litigation.

The case of the "lover scorned" or "consensual relationship gone awry" is always difficult.  Again, a well-executed and thorough investigation should get to the bottom of that.  Regardless, there is an underlying theme – when there is an inequality of status, there is a potential presumption that the person in the higher position could be using his or her power over the other individual.  This could vitiate any claim of mutuality.

Q:        Can't we just make sure he or she doesn't supervise people anymore?  Can't we just transfer or "pay off" the complaining person?

A:        But what happens the next time?  And the time after that?  Fool me once, shame on you.  Fool me twice, shame on me.  Assuming the company really knew nothing about the executive's misdeeds and that the complaint truly was the first inkling the company had about the conduct, then taking prompt action to do its best to ensure the conduct never happens again may suffice.  But if the company knows about the conduct and tries to "sweep it under the rug," the stakes go up exponentially.  First and most importantly, you are still going to expose your employees to an individual who has been shown to have engaged in inappropriate conduct.  Even if the alleged conduct affects different employees in a different part of the organization, they are still your employees.

From a liability perspective, your risk of liability (and the potential for significant liability) also goes up exponentially.

Q:        How can we ensure that our workforce knows we are open to, and in fact, encourage, employees to complain if they are subjected to inappropriate conduct, regardless of who engages in the conduct?

A:        Training is key.  Making sure that all employees are trained, not only on what types of conduct are inappropriate for the workplace, but also about how to complain, is key.

But what is even more important is a company's non-retaliation policy.  Employees must be told over and over again, and shown by the company's actions when a situation does arise, that no matter what, the company encourages all complaints and will not allow any retaliatory actions to be taken against someone who steps forward.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions