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Why Victims of Employer Misconduct Don’t Just Walk Away

Allegations surrounding former-executive of Weinstein Co., Harvey Weinstein, have had a tremendous impact. As a result, Mr. Weinstein no longer wields the same power. Questioning how Mr. Weinstein was able to maintain that power, instead of why subordinates did not simply walk away, despite his history of misconduct could be crucial to saving others. Nevertheless, I will attempt to do both.

One story which has emanated from Weinstein’s accusers is the story of Sandeep Rehal. According to a January 25, 2018, federal lawsuit she filed against Mr. Weinstein, Ms. Rehal was once employed as a personal assistant to Mr. Weinstein. In her lawsuit, she alleges, among other things, an egregious working environment: being dictated to by a naked Harvey Weinstein, cleaning up condoms after Mr. Weinstein’s encounters, and being at the receiving end of daily and unwanted touching and comments. Ms. Rehal endured this, and more, for approximately two years.

The reason why Ms. Rehal was not able to walk away and why abusive people maintain power is because of the degree of plausible deniability and deference to which administrative sections in organizations are provided.

Generally, when HR learns of misconduct, protocols dictate conducting an internal investigation where, usually, an internal investigator, who is an employee of the organization, is tasked with determining whether the allegations are substantiated or not.

This system, however, prevents internal investigators from operating with integrity. Being that internal investigators are usually part of the company, their interests are aligned with sustaining the company. For example, if an investigator’s organization is sued in an amount beyond recovery, the investigator risks losing a job. If HR investigates a superior, the investigator risks jeopardizing his or her advancement within the company.  Practically, the only incentive they have to do their jobs properly and discover the truth is a moral one. For example, within the Los Angeles County Fire Department, internal affairs officers can make between $65,000-$85,000, in addition to other employee benefits. Often, being moral does not pay a mortgage, utilities or for adequate day care.

Ms. Rehal’s lawsuit suggests that Mr. Weinstein may have made her aware of this system when he informed her, “I am Harvey Weinstein and you are at Weinstein University. I decide whether you graduate.”

Mr. Weinstein’s alleged statement begs the question. Does the performance evaluation take into account the evaluator’s own misconduct? For example, would a harasser say in the evaluation, “I exposed you to a hostile environment and you did not perform well. All things considered, you did an ok job.” Probably not. Moreover, if an alleged harasser is able to get away with their own conduct, with HR’s blessing, the performance evaluation sticks.

Used unethically, the evaluation also serves as a defensive mechanism by providing the pretext that the employee’s motive for complaining about her employer is to avoid getting fired for doing a bad job.

Walking away from an organization is not a practical solution. Once the orphaned employee is out in the job market, another HR department presents a whole new set of obstacles.

Supposing, for example, Ms. Rehal is asked why she left her last position. If Ms. Rehal candidly discloses that she was being sexually harassed by her employer, there are now questions. What actually happened? Is she saying this to cover herself in case her former employer gives her an unfavorable recommendation? In addition, she is badmouthing her former employee; do we want someone like that on our team? If her allegations are true, why didn’t she sue? Maybe she didn’t sue because the lawyers she consulted figured out that she didn’t have a case. Most importantly, if she did sue, do we want someone who litigates against her employers?

If the candidate omits the position, she now has to explain why there is a gap in the resume. When asked why, the candidate is free to say that there were personal issues that occurred in her life that are confidential and sensitive. Whatever words she uses to excuse herself from answering the question can’t be said faster than “red flag.”

Furthermore, if a red flag has not been raised yet, there is one question that is sure to do so: “Do you mind if we contact your previous employer?” Although avoiding performance related questions and responses is a smart policy that avoids potential defamation lawsuits, some people, simply, do not care about policy.

Individuals like Ms. Rehal do not have a long time to figure out that administrative systems treat victims like spoiled goods. Statutes of limitations fail to take into account the amount of time it will take victims to actually learn this lesson. Ultimately, her only option is to try to beat the system or get professional help and pray for judicial relief.