Today’s headlines are, unfortunately, dominated by stories of workplace sexual harassment and assault allegations against men in positions of power.
The novelty of the legal cannabis industry has shielded it from the type of institutional harassment entrenched in the entertainment industry. But no industry is immune from attracting individuals who fail to respect gender equality. Industry data consistently reflects that women hold a larger percent of leadership positions in cannabis than in other multibillion-dollar industries; however, according to Marijuana Business Daily, the percent of female executives slipped from 36% in 2015 to 27% in 2017. And according to the recent Women Grow/New Frontier diversity survey, 1 out of 3 people in cannabis knows someone who has been sexually harassed within the industry.
It’s a sensitive topic that underlies the social media campaign #notinmyindustry, designed by a handful of women’s groups who protested the hiring of a new CEO at MassRoots, an individual who was accused of abusing an ex-girlfriend and later reached a civil agreement to settle the claim (a grand jury in 2014 declined to indict him and he has always maintained his innocence).
Employees are entitled to effective workplace policies by which claims of harassment or discrimination may be properly addressed and resolved. To create a workplace environment free from gender-based harassment, discrimination and bias, employers should first adopt a zero-tolerance policy against it.
Ironically, an employer’s legal exposure often turns on how it addresses the complaints — not necessarily whether the offensive behavior actually occurred, or the degree of its severity.
Employers and managers must be trained to distinguish between generalized misbehaviors and actionable claims of harassment, gender bias and all forms of gender-based misconduct. Sexual discrimination and gender/transgender bias may consist of, among other things: quid pro quo (sexual conduct in exchange for advancement, compensation or other employee benefit) or boilerplate discrimination (such as, “You can’t do this because you’re a man/woman/transgender”). Sexual harassment may consist of, among other things, showing or sending sexually explicit or insensitive images, telling sexually explicit jokes, stalking, unwanted physical contact and repeated unwanted invitations to go out (particularly after advances have been declined). A hostile work environment may consist of, among other things, posting sexually explicit material for all to see (not targeted at any particular individual), allowing employees to be cruel to one another and allowing slurs, sexist remarks or provocative and explicit comments in the course of work.
Employers have a legal duty to investigate all claims and instances of gender-based misconduct in the workplace. Thus, as soon as a manager has been informed of allegations comprising a potential claim, the manager, to reduce the potential for legal exposure to the company, must escalate, or bring the complaint to the company’s attention, usually through the human resources department.
To the extent possible, conversations between HR and a complaining employee should be witnessed, to avoid misunderstandings with respect to the company’s commitment to address the allegedly offensive behavior. HR should strictly abide by any internal policies governing such claims. Typically, a comprehensive intake should follow to ascertain, among other things: what, when and where the offensive conduct occurred; if the incident was isolated or happened before; identification of witnesses, related conversations, relevant background, and of course, proposed resolution. Employers must value input and suggestions, while being careful not to promise resolution in any particular manner. The intake will dictate the initial scope of an investigation, if an investigation is appropriate.
Executing a workplace investigation takes planning, resources and care to avoid the accused from alleging that the investigation was prejudged (which may spur costly and time-consuming defamation, wrongful termination and/or Title VII claims). Employers should, among other things: (a) identify the issues; (b) determine who will conduct the investigation; (c) consider the timetable in view of need for promptness or milestone dates approaching (such as Equal Employment Opportunity Commission filing or dates the complainant and accused will be together); (d) consider how best to document the investigation; (e) identify all sources of information to be reviewed (memoranda, policies, emails, personnel files, managers’ notes/files, calendars, background checks, etc.); (f) determine manner and scope of interviews; (g) prepare a uniform statement to precede each interview for both cooperative and non-cooperative witnesses; and (h) consider instituting interim remedial measures designed to protect the complainant (suspension, change in schedules, transfers, etc.).
Employers must train and encourage managers to promote the zero-tolerance policy. The cannabis industry already suffers from the stigma of federal illegality; it’s critical that businesses remain free to advocate and navigate regulatory compliance, without the burden of gender bias, discrimination or harassment.
Lauren Rudick represents investors and startup organizations in all aspects of business and intellectual property law, specializing in cannabis, media and technology. Her law firm, Hiller, PC (www.hillerpc.com), is a white-shoe boutique firm with a track record for success and handling sophisticated legal matters that include business and corporate law.