A few weeks ago in this blog, my colleague Martin Luff discussed how buyers of businesses are increasingly using “Weinstein reps” in corporate transactional agreements in order to ensure that they are not acquiring companies that might be especially vulnerable to harassment litigation which could result in a financial or reputational liability.

This made me wonder about the “due diligence” that should be done by companies when evaluating a single prospective executive. Unfortunately, unless the applicant has a prior conviction for domestic violence assault or some similar offense, a standard background check is unlikely to flag a candidate who might have “issues” when dealing with subordinates of a particular gender.

For top level executives, some employers may choose to have a more expensive “investigative report” done on the candidate, where the background check company conducts personal interviews concerning the applicant’s character, general reputation, personal characteristics, and lifestyle. Bear in mind, however, that “investigative reports” will not always uncover prior harassment complaints against an executive since most companies work hard at keeping such personnel information confidential. Additionally, if an employer chooses to do a more thorough investigative report, they will need to comply with additional obligations under the Fair Credit Reporting Act (and potentially other state-level restrictions).

Perhaps the most effective tool for uncovering potential “#MeToo” problems is addressing the issue in the job interview. Consider questions like the following.

  • A female employee in our company comes to you and complains that she does not feel that women are given sufficient opportunities to develop in the company. How do you handle the conversation? Have you ever had such a conversation in prior executive positions?
  • An employee in our company comes to you and complains that her supervisor is subjecting her to a hostile environment. What do you do? Without identifying any names, tell me how you handled such complaints in the past.
  • Have you ever been in a situation at another company where an employee accused you of harassment or subjecting them to a hostile environment? How did you feel about that?

In fact, if the candidate answers “No” to the last of these questions, you may want to document the response. If you later discover that he was being untruthful, his false response may provide a basis for terminating the executive for cause. But the primary benefit of engaging the prospective executive in a conversation about these issues is that it gives you an opportunity to explore the candidate’s attitudes towards others and his workplace values. A great “vision” for business issues could be easily undermined by a candidate’s inability to empathize with diverse subordinates or appreciate the importance of maintaining a work culture where women are treated with respect. If a candidate is awkward about answering these type of questions, he (or she) may not only lack the leadership skills that your company needs but could also become a serious liability.