Avoid Mark Cuban’s mistake when dealing with sexual harassment at work

Over the weekend, I read Jon Wertheim and Jessica Luther’s article at SI.com (NSFW – language), which describes a workplace that for many women was flat out scary AF.

A “locker room culture.”

I’m not talking about the locker room. Indeed, the report expressly notes that the actual basketball players treat women with respect.

Seemingly, the problem was everywhere else. From the article:

While sources referred to the Mavericks office as a “locker room culture,” the team’s actual locker room was a refuge. Says one female former senior staffer: “I dealt with players all the time. I had hundreds of interactions with players and never once had an issue…they always knew how to treat people. Then I’d go to the office and it was this zoo, this complete [mess]. My anxiety would go down dealing with players; it would go up when I got to my desk.”

Dean Wormer’s ears are burning:

“It was a real life Animal House,” says one former organization employee who left recently after spending roughly five years with the Mavs. “And I only say ‘was’ because I’m not there anymore. I’m sure it’s still going on.”

Both the SI.com article and other sources; e.g., Nick Martin’s article at Deadspin.com (NSFW – language), describe Dallas Mavericks owner Mark Cuban as a hands-on micromanager. Still, the Deadspin article notes that Mr. Cuban “‘insisted he had no knowledge of the corrosive culture in his offices,’ when presented with the report by SI on Monday.”

But now, heads are rolling.

Cuban has since fired the HR Director and one of the alleged harassers.

Cuban himself is shouldering the blame. Here’s a snippet from Tim MacMahon’s article at ESPN.com:

“I want to be clear, I’m not putting the blame on anybody else,” Cuban told ESPN. “It came down to my final decision that I made.”… “So that was my decision. What I missed — and it was truly a f—up on my part because I was not there [at the Mavericks’ office] — I looked at everything anecdotally.

Who should you protect at work?

The takeaway from this post could easily be that workplace culture is set from the top. Indeed, the SI.com article details allegations of appalling behavior by the team president and CEO, Terdema Ussery.

I’m going with a different approach.

There are times when a male manager is accused of harassment — awful stuff — and notwithstanding, there is pushback from ownership to drop the hammer on the knuckledragger. I’ve heard it all:

• “He’s a good producer.”
• “Yeah, but we need to make a business decision here.”
• “There’s a cost to replace him.”
• “He’s a married man. It would be so embarrassing.”
• “Everyone deserves a second chance.”

I get all that, and I’m not saying that the pendulum has swung so far in the opposite direction in recent months that someone who violates a company’s anti-harassment policy shouldn’t get a second chance.

Sometimes.

Indeed, I’ve conducted enough workplace investigations where the victim tells me that she does not want the company to fire the alleged harasser.

Just consider that giving a second chance can create legal risk.

More importantly, from a business standpoint, what kind of message does it send to the rest of the workplace when the bad actor is allowed to keep his (or her) job? Mr. Cuban acknowledged as much:

My real f—up was I didn’t recognize the impact it would have on all the other employees. I looked at this as a one-off situation where, OK, if I don’t do anything, this person could go out there and do damage on another women another time. Or do I say, can we get him counseling to try to prevent that from happening again? I thought I was doing the right thing at the time.

“What I missed, again, is I didn’t realize the impact that it would have on the workplace and on the women that worked here and how it sent a message to them that, if it was OK for Earl to do that, who knows what else is OK in the workplace? I missed that completely. I missed it completely.”

Hey, no one said this is going to be easy.

Let’s see if I can help. For more on this issue and others related to the #MeToo movement, be sure to click here to sign up for a free webinar, “Sexual Harassment Roundtable: Practical Guidance for Employers.” The webinar will take place on Thursday, March 1, 2018, from 1:00-2:00 p.m. Eastern Standard Time. I’ll be on a panel with three other standout employment lawyers. The program is eligible for 1 CLE credit.