New Jersey Employment Lawyers Blog
An extensive independent investigation into the Dallas Mavericks has substantiated numerous claims of sexual harassment and other serious workplace misconduct within the organization over a span of over 20 years. In response to the findings, Mavericks owner Mark Cuban has apologized to all the women involved and promised that the organization will be better in addressing issues of sexual harassment in the future. Mr. Cuban will also pledge $10 million to women’s groups in response to the findings of report.
Incidents of sexual harassment first became public in a February 20, 2018 Sports Illustrated article titled “Exclusive: Inside the Corrosive Workplace Culture of the Dallas Mavericks. In the article, SI details various allegations of severe and pervasive sexual harassment within the Maverick organization. The allegations included more than a dozen current and ex-employees referring to the sexual harassment, domestic violence and other serious misconduct within the workplace as being as an “open secret.” Many of the incidents of the sexual harassment came from Team President and CEO, Terdema Ussery, who was accused of sexually harassing employees from the very beginning of his employment in 1998 when he became President and CEO. The allegations against Mr. Ussery included him repeatedly positioning employees for sex, unwelcomed touching of employees during meetings and other incidents of sexual harassment. Mr. Ussery left the Mavericks in 2015 to take a position with Under Armour as president for global sports. It has been reported thecomeback.com/nba/mavericks-former-president-terdema-ussery-accused-serial-sexual-harassment.html that Mr. Ussery was accused of sexual harassment at Under Armour and resigned after two months in the position.
The Dallas Mavericks responded to the SI story by hiring prominent employment lawyers from the law firms of Lowenstein Sandler and Krutoy Law, P.C. to conduct a thorough investigation into the allegations in the article and all other any issues of serious misconduct. According to the investigation report, the employments lawyers conducted interviews of 215 witnesses during the seven-month long investigation. The employment lawyers reviewed 1.6 million documents and emails with the assistance of an independent forensics firm. They also reviewed human resource files, employee handbooks, policies and training and other information on the hiring, firing, promotions salaries, salary increases and bonuses provide to employees.
Federal and state law require that employers conduct fair, complete and thorough investigations into claims of a hostile work environment and remediate any sexual harassment . An employer will be found liable for sexual harassment at its workplace when they know or should know of the sexual harassment or perceived sexual harassment. An employer may avoid liability for sexual harassment that does not result in any adverse employment action if they can show that it took reasonable steps to prevent and promptly to correct sexual harassment in the workplace and the aggrieved employee unreasonably failed to take advantage of the employer’s preventative or corrective measures. This affirmative defense is commonly referred to as the Faragher/Ellerth affirmative defense which refers to two 1998 United State Supreme Courts that first created it. While the employee attorneys’ investigation will unlikely to provide cover the Dallas Mavericks’ liability for the acts of sexual harassment in the past under a Faragher/Ellerth defense, it is an important step in addressing and remediating the sexual harassment and hostile work environment that exists within the organization.
In total, the employment lawyers made thirteen (13) recommendations to the Maverick organization in their report which are as follows: (1) Increasing the number of women throughout the organization, including in leadership and supervisory positions; (2) improve formal harassment processes and create new paths for victims to report misconduct; (3) Evaluate, and hold accountable, all executives, managers and supervisors on their efforts to eliminate harassment and improve diversity of all kinds throughout the organization; (4) conduct anonymous workplace culture and sexual harassment climate surveys on a regular basis to understand the culture of the organization and whether problems exist; (5) establish clear hierarchies and lines of decision-making authority within the organization; (6) clarify what role team owner Mark Cuban will play in the business organization. If Cuban intends to hold a management role, he and the CEO should explicitly define what his role will be, along rules for when and how Cuban engages on issues; (7) Strengthen and expand Human Resources, and implement clear protocols and processes for evaluating and adjudicating workplace misconduct issues (8) provide prompt and proportionate and consistent discipline across the organization when harassment or misconduct has been substantiated; (9) provide regular training for all employees on sexual harassment; (10) adopt clear, transparent, office-wide processes for hiring, on-boarding, promotions, lateral transfers, performance evaluations, salary increases, and discipline; (11) collect and use data to add value to the Company and to identify weaknesses; (12) require all leaders, managers and supervisors engage in efforts to improve workplace culture and to ensure a diverse, inclusive workplace; and (13) employee, a full-time, in-house General Counsel.
The Dallas Mavericks will be well-served in implementing these recommendations provided by its employment lawyers as part of their investigation. It is imperative that the Maverick organization send a clear message to its employees that sexual harassment will not be tolerated going forward. Their decision to hire the employments lawyers to conduct this thorough investigation is a great first step in eradicating the hostile work environment that exists within the organization. It is now up to the organization to change the sexual harassing culture of the organization to a safe work environment for all its employees.