Sexual Harassment Minefield Is Increasingly Dangerous for Employers

The sexual harassment mess that has engulfed Hollywood, Washington and the national news media may have changed the rules of the game for employers seeking to stem the behavior and adopt standards and policies to protect their workforce and company reputation.

A year ago, we reported on how companies should establish the best and most thorough anti-harassment policies and training programs for your employees, as well as with how you should go about investigating and handling complaints that may arise.

The problem is that almost every organization involved in these highly-publicized cases is most likely to have pursued pretty much the same course of action, and it did nothing to prevent the offensive behavior.

“You can bet that every company ensnared in these scandals had the right policies and procedures in place, had done sexual harassment training, had a human resources department that was ready to respond. And all that preparation avoided … absolutely nothing,” comment attorneys Barbara Hoey and Mark Konkel of the law firm of Kelley Drye & Warren.

The question is: What should employers do from now on? Answers from the experts range from doubling down on previously recommended procedures to reinforcing them with stronger measures. One big point they make, however, is that once you get to the point of needing to investigate a complaint, regardless of the outcome, you have essentially already failed.

Hoey and Konkel observe, “In most cases we have ever seen, litigated and investigated for our clients, for every one harasser there are often 10 people who knew about the behavior, but either tolerate it, laugh at it, or just push it aside because ‘that’s just Harvey’ (or Jack, or Jane, or whoever). Often, these people don’t act or report for one simple reason: fear.”

Following the Harvey Weinstein revelations and all those that have followed, seemingly on a daily basis, it has become clear that the overall culture has changed radically. Some readers may remember the aftermath of the Anita Hill-Clarence Thomas controversy, which also resulted in employers adopting new rules.

The post-Weinstein impact is more widespread given the rank and celebrity of the ever-widening circle of those accused, stronger charges ranging up to physical assault and rape, and a new determination by women to share their experiences on social media and demand an end to this behavior once and for all.

Women can no longer be expected to stay quiet about behavior many feel they were previously forced to regard as simply a fact of life in the workplace. That behavior may not have extended as far as physical assault, but it did to a litany of other indignities they have been forced to endure over the years.

Heading Off Bad Behavior

Attorney Robin Shea was surprised when she recently saw a national poll in which 48% of women revealed they had been sexually harassed in the workplace. “My reaction was, ‘Only 48%?’ I would have guessed 100%.”

The definition of sexual harassment is deliberately vague, and it encompasses a vast range of behavior, from a dirty joke and suggestive “compliment” all the way to felonious conduct punishable by many years in prison, including sexual assault or rape, explains Shea, a partner with the law firm of Constangy Brooks Smith & Prophete.

“I have been sexually harassed—using this broad definition—during my many years in the workforce, and you probably have, too. I never considered any behavior directed at me to be serious enough to take to Human Resources,” she admits.

But keeping silent in even these situations can exact a price, Hoey and Konkel warn. “Conduct doesn’t have to be nearly as awful as [Harvey Weinstein’s] to be a real problem for you in litigation, in the media and otherwise. In the case of a senior executive who has power over lower level employees, even verbal conduct or jokes can support a viable legal claim.”

They say that companies should be thinking about how to coach the people who know about this behavior to come forward and identify risky behavior among coworkers, and to promote a culture where such behavior is regarded as unacceptable and reportable. “We are not talking about having a good complaint process. That’s a given, and all complaints should be examined thoroughly and responded to promptly.”

All too often management discourages this kind of reporting, Hoey and Konkel assert. “Too many companies treat employees who report concerns as risks to manage instead of as what they really are: a gift, one that helps you see the train before it flattens you.”

They stress that it is essential to create a culture where the employee brave enough to raise an issue does not experience retaliation, and where the organization is not afraid to make an example of the proverbial bad apple.

Changing the culture in any company begins at the top, stresses attorney Jonathan Segal of the law firm of Duane Morris, who served as a member of the Equal Employment Opportunity Commission’s Select Task Force on Harassment. In 2016 the task force released a report about sexual harassment in the workplace that reached many of the same conclusions and warnings attorneys are issuing today.

The task force was created because sexual harassment charges are on the rise in recent years. About one-third of the 90,000 charges that were received by EEOC in fiscal year 2015 included an allegation of workplace harassment.

“Leaders in general and men in particular must do more than avoid what is wrong, and behavior is wrong long before it rises to the level of what has been reported in the high-profile cases,” Segal argues. “By their words and their actions, leaders must make the organization’s anti-harassment policy a true reflection of corporate culture.”

When as in the Weinstein case, such behavior occurs in the top ranks of an organization, the challenge may seem insurmountable, but that makes it all the more necessary to tackle it head on in these cases, according to Segal.

“One point must be crystal clear in every organization: The more power you have, the more is expected of you. Those who abuse their power must be met with prompt and proportionate corrective action,” he adds. “In some cases, this will mean terminating the rainmaker. But if you ignore, or worse yet protect him, a jury can and will take away all the rain. Plus, values matter.”

Preventive Steps Needed

This October, the EEOC formally responded to the recommendations of its Sexual Harassment Task Force by launching two new training programs aimed at employers: Leading for Respect is intended to help train supervisors and executives, while the Respect in the Workplace training course is aimed at employees at all levels.

This also comes after the agency’s recommendation last year that employers train employees on what they should do, rather than focus exclusively on what they should not do.

The courses are voluntary and are conducted by the EEOC Training Institute staff at participating employer worksites. To schedule such training, contact your local EEOC Outreach Program Coordinator.

“These trainings incorporate the report's recommendations on compliance, workplace civility and bystander intervention training,” says EEOC Acting Chairman Victoria Lipnic. “I believe the trainings can have a real impact on workplace culture, and I hope employers make use of them. A strong training program is a critical piece of a holistic harassment prevention effort.”

EEOC Commissioner Chai Feldblum, who also served on the task force, observes, “We know that workplace incivility often acts as a ‘gateway drug’ to workplace harassment. These trainings, therefore, provide employees with the specific skills they need to act respectfully and to intervene when they observe disrespectful or abusive behavior. In short, the program is designed to stop improper behavior before it ever rises to the level of illegal harassment.”

Hoey and Konkel warn employers to do everything in their power to prevent sexual harassment incidents from occurring because by the time you need to conduct an investigation, you are already in deep trouble. “You can conduct a perfect investigation, but the conduct happened already. You can be smart in litigation and settle bad cases, but even a confidential settlement doesn’t always stay confidential and may not always protect the company from bad press, a loss of prestige, and damage to your brand.”

Training is more effective when it is conducted jointly by both men and women, so that male employees don’t view this as a woman-vs.-man exercise, notes Ruth Binger of the law firm of Danna McKitrick. “Mediated conversations between small groups of men and women will help forge consensus about what constitutes sexual harassment.”

She also recommends conducting frequent anonymous “climate surveys” that include questions about employees’ experiences of harassment, followed up by management taking concrete actions to head off any behavior that can result in more serious—and more public—reactions down the line.

Men also should learn the effectiveness of calling out other men when they see such behavior or hear inappropriate comments, Binger emphasizes. “Those ‘cut it out’ exchanges or micro-interpersonal interactions have tremendous power.”

But employers should still keep in mind that not all offenses are on equal footing or deserving capital punishment, Shea says. In the current social environment, it is vital that employers conduct a fair, thorough and even-handed investigation of employee allegations. “The bawdy joke, or the clumsy ‘compliment’ that makes reasonable women cringe, may be corrected with counseling and guidance about how to behave in the future, coupled with a low-level disciplinary warning,” she observes.

Hoey and Konkel also argue that encouraging employees to reveal their concerns outside of the formal complaint process creates the opportunity to root out problem behavior before it gets more serious.

“If good people are not afraid to step up before there is a formal complaint, and alert HR or legal that there is someone who may be ‘crossing the line,’ you can possibly solve several problems at once,” they point out. “First, you can counsel the problem employee and may end up saving his job. Second, you root out unlawful conduct and stay out of court. And third, you defuse a salacious, newsworthy trainwreck of an HR situation and stay out of the press.”

It is imperative for employees to get the message loud and clear from management that they are expected to treat one another with dignity and respect; that HR is available to address any concerns; that raising a concern isn’t “rocking the boat” or “ratting out” anybody else; and that an open, transparent and fair workplace culture is critical to the success of the business, Hoey and Konkel assert.

Segal believes that when it comes to training, even in the best corporate cultures, holding training sessions once a year may not be enough. Promising practices include reminding employees throughout the year about corporate reporting mechanisms and which retaliatory and harassing behaviors must be avoided.

“HR cannot do it alone; it does not own civility,” Segal points out. “Every leader must join the battle. It is one of the moral imperatives of our time.”