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Human resource due diligence in buying a business



Patrick Brown had the Premiership in his grasp. He had worked his entire career to reach that pinnacle, even abstaining from alcohol to ensure that he would never make the types of mistakes which could detract from his goal. Suddenly, a ten year old allegation arose, one which was quickly  proven to be at least partially false. Not withstanding the lack of evidence, his career was ruined and he now cannot even run for a seat with his former party.

His is only one high-profile example of an increasing phenomenum, a male executive whose ascension is  precipitously derailed by the zeitgeist of #MeToo.

I have had many executives visit my office in recent months, concerned about, sometimes, decades old liaisons, panicked that their careers are about to be knee capped.  Should they approach that romantic interest of yesteryear and try to resolve matters, at the risk of potentially awakening a slumbering complaint or is it better to venture on with crossed fingers and a tormented soul?

And how should they respond if a complaint is made?  Unless the employer fires the employee instantly to avoid damaging its brand, the employee must  decide whether to quickly resign to preempt any investigation or to fight the charges, hoping to clear their name and salvage their job.  In doing so, they should consider, even if there is not legal cause for their discharge,  whether their conduct, once disclosed, will effectively end their career and future employability. Rather than deal with these conundra, it is far better to be preemptive.

With that in mind, here are my suggestions for conduct in the #MeToo era:

Do not Date in the Workplace

A generation ago most Canadians met their spouse at work.   We no longer safely have that liberty.    Legally, there is not sexual harassment unless the “harasser” knows or should have known that their overture was unwelcome.    This generally means that you never ask a co-worker out a second time if they do not accept the first.  But even an initial request for a date is fraught with risk if the recipient later alleges that they were treated differently after rejecting the request.  Superior-subordinate relationships should always be forbidden as a matter of policy and disclosure of such a relationship should be required in order, as a matter of corporate policy, that the employer can transfer at least one of the involved parties so that the superior will  be in no position to bestow workplace favors on the subordinate and other peers of the subordinate will not allege favoritism.  The policies of Google and some other companies permit co-workers to ask each other out once before it will be considered harassment, with even a nebulous  response i.e. “perhaps another time” considered a rejection.  My advice, simply don’t do it, not even once.

Ensure that all Workplace Communications are Sexually Antiseptic

To state the obvious, there cannot be a complaint if you say nothing that can be complained of.    No double entendres, no discussions of racy scenes from Game of Thrones and no personal anecdotes.   Not only invitations constitute sexual harassment.    So do comments creating a sexualized atmosphere and thereby, in the minds of the recipients, a poisoned work environment.

Limit Alcohol at Workplace Social Events

Close to half of the sexual harassment cases I have dealt with have arisen at workplace social functions.    Alcohol not only provides false confidence and distorts your social perception but can exaggerate your overture in the perception of the recipient.  For that reason, you should be particularly circumspect socially when alcohol is involved.

Avoid Comments on Co-Workers Physical Characteristics

What your spouse might view as a compliment, a co-worker might consider sexual harassment, particularly if it is repeated.

Assume That Comments of a Sexual Nature will Ultimately be Viewed as Unwelcome

Just three months ago, NFL Hall of Famer Marshall Faulk and other on-air talent were suspended by NFL Network after Jamie Cantor accused them of sexually harassing and assaulting her.  Although the conduct had purportedly gone on for some time, the allegations arose after she sued the Network in response to being fired from her job as a wardrobe stylist after being accused of stealing clothes. The Network’s defence was that she had consented to the conduct along the way.  I have seen many instances of harassment allegations arising after previously consensual relationships end.

There are two points of note.   First, a bad ending can influence ones’ perception of previous conduct. Second, previous consent does not  denote future consent.

Avoid Social Media Connections with Co-Workers

Subordinates may feel they have no choice but to accept your Facebook “friendship” requests.  But what flows from that might include  “liking” vacation pictures showing co-workers at the beach which they may interpret as intrusive. This coincides with point 2, that all interactions involving co-workers should be sexually antiseptic.

Limit the Divulging of Personal Information

You may have the apprehension that you are becoming friends when the workplace recipient of your  narratives is merely being polite.   Ultimately, there is the risk of the recipient considering your personal stories and comments intrusive.  As well, your belief that you have become friends makes it easier to veer into discussing your romantic and personal life, which can be deemed sexual harassment.

Attend Functions in Groups

According to a US Survey Monkey study, a large majority of male managers are now reluctant to have social  engagements and business trips with female subordinates for fear of possible false allegations of sexual harassment later.   Junior female employees will suffer from being deprived of the vocational opportunities of attending the events, meeting the clients and being mentored. While I cannot persuade employees that this fear is almost always misguided, I can suggest that the risk will be entirely avoided if you invite more than one person to the meetings in question.



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