By David R. Jimenez and Alyssa M. Toft, of Jackson Lewis
Following a February 2018 Sports Illustrated article regarding alleged sexual harassment and misconduct within Dallas Basketball Limited, the Dallas Mavericks basketball organization (“Mavericks”), the Mavericks commissioned an independent investigation into the claims. The investigators, comprised of two outside law firms, interviewed 215 witnesses and analyzed 1.6 million documents. The investigation report was publicly released on Sept. 19, 2018.
The lengthy report details a number of allegations regarding sexual harassment or other misconduct by the former CEO, the former Human Resources Director, and other employees. Allegations ranged from inappropriate touching and sexual advances, to watching pornography at work, to domestic violence. The report also highlights concerns regarding management’s failure to appropriately address employee complaints and stated that “there were no internal controls or governance structures in place[.]”
One of the most interesting components of the report is the remedial recommendations made by the investigators.
The investigators’ very first recommendation was to increase the number of female employees, including those in leadership positions, within the company. The report observed that “Research has shown that the single most important thing that companies can do to reduce sexual harassment and gender discrimination in the workplace is to employ, and promote, more women. Having women in executive leadership positions is particularly critical.” The report noted that when the investigation began, there were no female executives. Shortly thereafter, Cynthia Marshall was hired as President and CEO, and there are now eight women in executive positions (out of 18 total).
The investigators also recommended that the Mavericks “[c]onduct anonymous workplace culture and sexual harassment climate surveys on a regular basis” to identify problems. Further, the report illustrated instances where management failed to make important personnel decisions, and indicated the company’s culture “lacked any hierarchy and consisted of blurred lines of decision-making on some issues.” The report stated that “Numerous studies have concluded that unstructured decision-making leads to increased risk and a higher prevalence of sexual harassment in the workplace, as policies are less likely to be enforced strongly and promptly, and disciplinary consequences become less clear and uniformly applied.” Thus, the investigators recommended the Mavericks establish clearly-defined decision-making roles.
The report further recommended that the Mavericks expand its Human Resources department and hire a full-time General Counsel — both of which have now been done. Of course, the investigators also recommended robust sexual harassment training and emphasized the importance of including leadership in these trainings.
The investigators’ recommendations demonstrate that traditional remedies, such as conducting trainings and redefining policies, may be insufficient, particularly when actions of the organization belie those policies and training efforts. Instead, employers should address sexual harassment through more nuanced approaches aimed at creating a culture of inclusivity and trust in organizational leadership.
