First, CULTURE. According to Freehs statement, Penn States Tone at the Top for transparency, compliance, police reporting and child protection was completely wrong. The report reveals that janitors at the school observed what is described as a horrific sexual assault of a child in the shower, but did not report it because they were afraid of being fired for reporting a powerful football coach. We often recommend that employers maintain an open door policy assuring that all employees have access to company leaders to express concerns, as well as a whistleblower policy offering protection from retaliation so that employees can come forward with troubling information. Its possible (even probable) that Penn State had such policies. But policies aren't worth the paper there written on if employees don't believe in them, and employees wont believe in them if senior leaders don't follow them. Culture and practice often matter more than what is written in a handbook. Employers can take a peek at their handbooks to make sure that they have they the right things written down, but they should also take a good hard look at their practices to make sure the policies mean something.
Finally, PERSPECTIVE. The Freeh report concludes that leaders at Penn State concealed critical facts relating to Sandusky's child abuse in order to avoid bad publicity. We wrote previously about whether an employer could be held legally responsible for harm that could have been prevented if the employer had used its access to employees electronic communications to identify dangerous conduct. We assumed that a situation like the one Penn State now finds itself in, where key leaders were aware of allegations of serious misconduct, and yet did nothing, would be likely to create liability for the employer. Emails recovered by the investigators of Penn State demonstrate that school leaders knew of the 2001 report and chose not to inform child protective services, choosing instead to tell Sandusky not to bring children to football locker room. According to the emails, the only downside for us is if the message isn't heard and acted upon, and we then become vulnerable for not having reported it. But that can be assessed down the road. The approach you outline is humane and a reasonable way to proceed. Do you have counsel who can help you appropriately assess the risks associated with a course of action or inaction?
The scandal at Penn State is more than just a cloud on the reputation of an institution. The inaction of school leaders gave a criminal an opportunity to victimize kids. The inaction of managers and supervisors can provide an opportunity for unlawful conduct in the workplace. Employers are wise to heed the lessons of the Freeh report and examine their culture, policies, and practices to make sure that inappropriate conduct is not tolerated.
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