As if the Dallas Mavericks of the National Basketball Association ("NBA") didn't have enough problems already. The team is currently at the bottom of the NBA standings with no way out of the basement. Additionally, their gregarious and high profile owner, Mark Cuban, was just assessed a $600,000.00 fine by the league for alluding to a local reporter that "tanking" the season may be an option. Now comes an expose from Sports Illustrated that reveals that the Mavericks organization was run like a frat house for many years leading to recent claims of both sexual harassment and hostile work environment.
A. The Mavericks are alleged to have had a supercharged work environment where misogyny was an "open secret."
In an expose entitled, "Inside the Corrosive Workplace Culture of the Dallas Mavericks", Sports Illustrated reported after several interviews with both current and former employees of the Mavericks that the environment inside the Mavericks' organization spawned a culture of "misogyny and predatory sexual behavior." The complaints primarily focused on the conduct of the Mavericks' past team president, Terdema Ussery, who resigned in 2015. Ussery later left the Mavericks organization for a position at Under Armour and was later terminated for alleged sexual harassment and creating a hostile work environment.
For a major sports franchise like the Mavericks, let alone a major league and television personality like the team owner, Mark Cuban, this national expose acts as a major blemish to the integrity of the Mavericks' franchise. In response to the expose, the Mavericks quickly issued a press release stating that the organization was "taking the complaints seriously" and that the team had hired a law firm to conduct an investigation into the allegations. The Mavericks went on to say that "There is no room for such conduct in the Maverick's workplace-or any workplace." It is also interesting to note that the Mavericks, in their press release, did come out and immediately deny the allegations or challenge any of the facts or conclusions reached in the expose itself. The NBA will now be launching its own independent investigation into these allegations.
B. If it happened to the Mavericks, it can happen to your company.
What is particularly astonishing is that an organization like the Mavericks would have allowed this alleged conduct to have occurred in the first place. Apparently, when Cuban was interviewed about the article he claimed to have had no idea about the allegations set forth in the expose stating, "This is all new to me." He went on to say that this is "not a situation that we condone" and that "it needs to be fixed." The lesson to be learned from this egregious situation is that hostile work environments occur on all levels and occur even in companies that are owned and operated by a supposed hands-on owner such as Mark Cuban. The fact that Cuban is the sole owner of the team appears to make him responsible for what happened whether he knew what was occurring or whether he should have known what was occurring within his own organization.
C. In the "#MeToo" era, employers must have proper policies and procedures in place in order to avoid being caught in the hostile workplace web.
We have entered a new era where sexual harassment and hostile work environment will not be tolerated on any level, by anyone, any longer. Employers should be prepared to address the cultural sea change taking place in the American workplace in anticipation of the potential and foreseeable expansion of sexual harassment/hostile environment claims. Here is a brief checklist of the things your business needs to consider when developing policies and procedures to avoid a Mavericks-like calamity:
1. Maintain an effective anti-harassment policy. Your company must maintain a policy that prohibits sexual harassment and harassment based on other classifications. The policy should specify those classifications and the types of conduct to be proscribed by employees, supervisors, and management.
2. Have a complaint procedure in place. Within your anti-harassment policies, you should delineate how complaints are to be filed with the company. Companies have many types of procedures for filing complaints including an option of reporting claims directly to third parties or the human resources department without having to go through a supervisor in the first instance. The policy should also specify that any filing of a complaint will not result in retaliation by the employer.
3. Mandatory Education. All employees must attend ongoing sexual harassment training. Use education to empower your workforce by encouraging them to root out bad behavior in the workplace.
4. Supervisor Training. Often, the harassment starts at the top. It is thus critical that supervisors receive additional training to educate them about their role in protecting employees from harassment and a hostile work environment.
5. Investigation of all complaints. As an employer, you must act promptly. All complaints must be evaluated completely and objectively. Employees must be informed of any decisions or changes made as a result of any evaluation.
6. Once you have investigated, you must immediately take all necessary action. Waiting to take any necessary action could result in expanded liability particularly if a complaint has been filed and the unlawful conduct continues during the investigation stage. The investigation may result in a discharge or other form of disciplinary action taken by the business.
7. Understand your business's risk factor for harassment. This is vital to assess what direction a business must take in preventing harassment. In 2016, the Equal Employment Opportunity Commission ("EEOC") issued a report identifying particular risks for harassment. These risk factors included homogeneity in the workplace, social discourse outside the workplace, the age of the employees, workplaces with "power disparities", decentralized work environments, and workplace cultures that tolerate and even sponsor alcohol consumption. The EEOC specifically cautioned that businesses would be well served to consider these factors in both training and policymaking in the areas of reporting and investigation of employee complaints.
It is incumbent upon your business to make sure that it doesn't foul out of the game by creating a foul work environment. We work with our clients to better understand employment disputes by running through hypothetical employment situations based on varying fact patterns. This practice allows our clients to get a real-world understanding of how to spot and prevent sexual harassment and hostile work environment conduct. Let us know what we can do to help you. Please call the Katz Law Group at 1-508-480-8202.