Employment & Labor Insider

Penn State. The Catholic Church. The schools. Employers are increasingly accused of covering up sexual abuse after they've reacted too slowly, or ineffectually, or after they've seemed to be too protective of "their own" and not concerned enough about the victims. I spoke this week with my colleague Jill Stricklin, who is a course planner for DRI's Sexual Torts program, which will take place November 13-15 in San Diego.  

ROBIN: Jill, why has the issue of sexual abuse reporting taken on such urgency in the past couple of years, and why should employers be concerned?

JILL: In recent decades, institutions have faced allegations of improper, and sometimes criminal, conduct on the part of employees. The Catholic Church was one of the most prominent -- or it was until 2011, when the Penn State scandal rocketed into the headlines. Schools and youth organizations have not escaped, either -- we even have sexual misconduct that is posted on social media for everyone to see.

Of course, the impact of sexual abuse can be devastating from a human standpoint, but also for business, reputational, and legal concerns. In terms of legal consequences for the organization, the potential for civil liability obviously exists. But we're also seeing criminal charges being levied against bystanders who aren't accused of engaging in sexual misconduct themselves but who failed to take appropriate action when confronted with it.

ROBIN: Which employment sectors, or industries, are most likely to be involved in a reporting issue?

JILL: Although sexual abuse can occur anywhere, organizations working with vulnerable constituents are the most susceptible. This includes employers in the business of serving children and young adults, such as schools, universities, youth organizations, and religious institutions. It also includes health care establishments, nursing homes, prisons and other settings where staff members work with people who are infirm or where a significant power disparity exists.

When it comes to reporting issues, virtually anyone in a position to know about sexual misconduct runs the risk of being held accountable, criminally or otherwise, for covering up or failing to act. Information technology personnel, in particular, are in a unique position to know about wrongdoing and therefore become obligated to report it, particularly in this highly digital age. For example, in the highly publicized rape case at Steubenville High School in Ohio, an IT employee was recently charged with tampering with evidence, obstructing justice, obstructing official business and perjury.

ROBIN: That is really scary. So, there are laws imposing a "duty to disclose"?

JILL: Yes. Many states, including Arkansas, California, Illinois, Missouri, North Carolina, Oklahoma, Oregon, South Carolina, South Dakota and Texas, have enacted laws requiring computer technicians or information technology professionals to report child pornography if they encounter it in the scope of their work. The laws don't require technicians or service providers to search for the illegal material, only to report it if they find it.

And, of course, there is also the potential for criminal charges if someone affirmatively covers up sex abuse or fails to act in response to a known offense.

ROBIN: Why do you think people are so reluctant to report sexual abuse issues? Are people that prone to want to "cover up" misconduct, or could there be other explanations?

JILL: Far too many people are simply unaware that they are obligated, under an organization’s policies or by law, to report sexual misconduct. Many are hesitant to accuse someone they know of such reprehensible conduct as sex abuse, particularly if they are not sure they have all of the facts.

ROBIN: Yes - you'd really hate to throw out a serious accusation like that unless you were sure about what was going on.

JILL: Absolutely. But the desire to "wait for all the facts" can become an excuse, too -- it becomes too easy to sit back and refrain from getting involved, even when you know enough to be reasonably certain that misconduct is taking place. It's also possible that a fear of retribution might stifle reports, particularly where the wrongdoer is in a position of power or influence. You may know about the misconduct, but suspect that no one will believe it.

Be sure to visit Tim Eavenson's Current Employment blog for the October Employment Law Blog Carnival: Haunted House Edition. It'll scare you to death!

ROBIN: Yes, I am sure the fear of retaliation is very real. Given the potential liability for employers, and also a simple desire to know and do the right thing in these tragic situations, what steps should employers take?

JILL: It all begins and ends with education. Organizations should implement policies spelling out how employees and volunteers are expected to proceed when they become aware of sexual misconduct. The policies should clearly state what conduct is prohibited, provide avenues for people to report sex abuse, and specify that anyone who makes a good faith report will not be subject to retaliation.

ROBIN: That sounds a lot like what we would recommend in connection with a no-harassment program.

JILL: There are definite similarities and even overlap, but sexual abuse involves the risk of devastating harm to the victim -- often a vulnerable child or elderly or disabled individual -- and the possibility of criminal liability for the employer and employees who are witnesses but fail to act. You don't normally see those elements in garden-variety workplace harassment situations.

Employers should consider incorporating some “teeth” into their reporting requirements, providing for discipline up to and including termination when employees fail to report known sexual misconduct. The education should not stop there. Once a policy has been implemented, the entire staff should receive training on their obligation to report sexual misconduct. Once people understand what’s expected of them, they will be much more likely to report wrongdoing, which will in turn enable organizations to address the problem.