Confronting Workplace Harassment
If you’re not nervous about workplace sexual harassment, you should be.
“Nerves are good—it means you care [and will] pay attention to the problem,” says Michael P. O’Brien, an employment-law attorney at Jones Waldo, a Utah-based law firm.
“Use this nervous energy to make positive changes,” he adds.
Though conversations about sexual harassment are difficult, HR professionals must have them—it’s really the first step toward prevention. According to Jeremy Eaves, senior director of teammate relations, people services at DaVita Kidney Care, it’s important that management is both introspective and honest when it comes to harassment.
“Leadership,” he says, “needs to ask, ‘Would we want this [harassment] to happen to someone in our family? Are we doing the right things to ensure that this doesn’t happen to an employee? Because that individual is someone’s family.’ I think stepping back and looking at it from this perspective offers much more insight into the appropriate way to respond to harassment.”
Sexual harassment is hardly new. The public-awareness floodgates were opened in 1991 by Anita Hill, who revealed the alleged horrors inflicted upon her by Clarence Thomas, her former boss. Flash forward to 2018 and it seems that every day the public has heard another new claim about men using power to harass and abuse others.
This decade’s most notorious offender (so far) is Hollywood mogul Harvey Weinstein, but he’s not alone. Former Alabama Attorney General Roy Moore, former Senator Al Franken (D-Minn.), Today Show anchor Matt Lauer and countless other famous men stand accused. As #MeToo resurfaced, the air was electric. A global response began building—empowered survivors, employees and advocates finally started speaking out about the injustices they faced (or currently face) at the hands of trusted friends, colleagues and bosses. They no longer want to remain silent or serve as passive bystanders.
Experts say that even organizations with the best policies and procedures about handling harassment claims may be stymied in how to respond because of precedents and policies modeled at the top. If the executives don’t illustrate appropriate behavior or if they demand HR sweep claims under the rug, HR professionals don’t have many options but to comply with the C-suite.
Unfortunately, that can lead to a lack of trust among employees, who feel their only option is to report abuse to an outside organization like the Equal Employment Opportunity Commission. Each year, the EEOC handles thousands of harassment claims, though in recent years, the number has decreased slightly. For example, in fiscal year 2012, the number of sex-based harassment charges filed with the EEOC hit 30,356. This number dropped to 25,605 in FY 2017. This decrease in reports may reflect that companies are starting to take harassment more seriously, and that employees feel more comfortable addressing the issue internally, experts say.
Though HR can only control so much, there are opportunities for improvement. Instead of waiting for a claim to surface or ignoring underlying issues within a company, HR leaders must move away from reactive policies and embrace proactive solutions.
Culture of Respect
The first thing that needs to be addressed is company culture. According to experts, culture is the most important determinant of a healthy workplace, free from any form of harassment.
“I ask clients to tell me about their culture—are people kind and respectful to each other? Do people feel there’s a culture of civility?” O’Brien says. “Then I look at the policy—I want to see if they specify what behaviors are inappropriate. Are supervisors and employees trained on culture and policy? Does your organization include examples of civility and remind the entire company that everyone is a keeper of the culture, not just the CEO?”
Successful anti-harassment strategies, he says, need to include two important components: prevention and treatment.
Prevention requires building a culture of respect and creating a comprehensive policy that dots all the legal i’s and crosses the legal t’s, he says. It also must include extensive training that emphasizes that culture.
The treatment component embodies the seriousness with which the company takes its policies and training, O’Brien says, adding it can be seen in the way in which it responds to a claim.
“When an issue arises,” he says, the company investigates and remedies it, even if “it’s inflicted by someone as powerful as Harvey Weinstein.”
Amy Polefrone, president and CEO of consultancy HR Strategy Group, says that HR must be the cultural pulse of an organization, making sure that everyone—from the factory floor to the C-suite—models a culture of respect.
That’s where HR professionals need to lead the charge, she says. “Employees need to know that, when something goes off course, here’s how we [the company] address it. Everyone should understand that these behaviors undermine an organization’s core values.”
Fran Sepler, a professional investigator and founder of Sepler and Associates, says that HR leaders should have a “heat map” of their organization, which points out areas requiring attention. From this, they need to determine how to address and fix those problem areas.
Sepler, who created the EEOC’s current sexual-harassment training, stresses that companies shouldn’t focus on fixing sexual harassment as a one-off issue, but instead should address the underlying culture of an organization.
“HR must serve as partner with leaders in an organization to implement a strategic approach to training, which includes inclusion work, culture work, creating opportunities for people to be heard and implementing various feedback systems,” she says. “The approach must be very comprehensive, and it must target culture as a whole, not just sexual harassment.”
It’s difficult to try and change behavior; telling employees what they should or shouldn’t do doesn’t magically fix problematic behaviors, says Kristen Houser, chief public affairs officer at the National Sexual Violence Resource Center, a nonprofit organization that provides tools for preventing and responding to sexual violence. Instead of saying “this is a risk or this is inappropriate, so don’t do it,” HR leaders should discuss appropriate ways to intervene and provide employees with strategies for responding to negative behaviors.
“Business leaders need to think about transparency,” Houser adds. “We know, without a doubt, many people don’t report sexual harassment because they don’t believe it results in any meaningful change. If you want employees to see you’re serious about addressing harassment, look at how you’re communicating your culture.”
A Model Workforce
At DaVita, Eaves says, culture begins at the top and is modeled to all employees. Any company worth its salt will have policies and procedures in place, but where many fall short is in enforcement and accountability. Employers need to make sure that, at every level, the behaviors that reflect the company’s culture are demonstrated.Eaves says DaVita’s HR team works to ensure that all teammates (the term used for employees at DaVita) understand the culture.
“Where we excel is that our training and culture isn’t solely focused on sexual harassment, but around an inclusive environment,” Eaves says.
The company holds gatherings called “academies” within a new hire’s first 90 days at which employees “talk about what it means to be a citizen in our village—you can hear how our vernacular alone allows us to make it a personal experience,” Eaves says. “The academies and overall culture of DaVita are more than just, ‘Hey, here’s how the business works and here’s how you do dialysis.’ It’s also about how we treat each other: ‘Here’s how we respect each other.’ ”
Executives are often present during these academies and are vocal about DaVita’s inclusive culture.
Because of the executives’ involvement, Eaves says, teammates are comfortable reaching them directly. He says it’s not uncommon “for teammates to say, ‘Hey listen, you’re doing a great job, but here’s some feedback for improvement.’ ”
According to David McFarlane, a partner at Washington-based Crowell & Moring, the onus of addressing and preventing harassment in the workplace is on HR.
“The particular groundswell of concern over harassment is something, for better or worse, embedded in HR,” he says. “HR is best and properly equipped for this, but they need more tools in the toolshed to help them facilitate and remedy the culture of harassment.”
One underutilized tool is connecting with local, national and global organizations that work to provide resources to employers, survivors and advocates on preventing and addressing harassment. Natural partnerships can be found with health departments and rape-crisis centers.
“This isn’t an HR-only issue,” Houser says, “so invite other people in the community who have different lenses to look at your workplace culture and policies to help you determine if you have barriers to reporting harassment.”
Another option is something McFarlane, an ERISA attorney, created and rolled out in December 2017: the Workplace Harassment Prevention and Protection Plan, which aims to help employers combat and remedy all forms of workplace harassment.
WHiPP, “in its most basic form, acts as a funding mechanism for an employee to seek his or her own health, therapy and psychological services, without fear of running up against deductibles or other limitations that often exist under health plans and employee-assistance programs,” says McFarlane.
The program is funded by employers as an ERISA-based federal benefit plan. Administering WHiPP under “ERISA’s stringent fiduciary duty requirements” is meant to help quell employee concerns about whether the employer will provide an actionable path for handling workplace harassment without company interference, McFarlane says.
Plenty of companies offer unique benefits, such as covering the costs of shipping breastmilk and pet insurance, so adding a benefit plan like this should be a no-brainer for organizations that care about employee well-being, he adds.
The program provides employees who have faced workplace harassment $5,000 to use at their discretion.
“Other EAPs designed to address mental or physical harassment usually come with a catch, such as meeting a deductible or only seeing preferred providers,” McFarlane says. “With the WHiPP, employees pay nothing and have access to the funds immediately.”
He agrees that sexual-harassment training is critical, but also stresses the importance of mechanisms that encourage employees to bring sexual-harassment claims forward.
McFarlane recommends appointing an ombudsman, a third-party individual to whom employees could raise concerns. This person would then facilitate the conversation with HR.
Does Training Work?
Though the effectiveness of sexual-harassment training has been hotly debated for years, experts emphasize that it’s still necessary—though how it’s deployed could benefit from some changes. It needs to be interesting and interactive, they say.
“Get employees talking about how harassment could happen in [their] organization,” Polefrone says. “Have them come up with specific examples that could occur between an employee and vendor or an employee and a supervisor. This type of interactive training comes alive, and employees can start to see how harassment could happen to them or their colleagues.”
According to Sepler, “A lot of training focuses on compliance and participants don’t see themselves in it. No one wakes up and thinks, ‘I’m going to sexually harass someone today.’ A common ideology during compliance-based trainings is, ‘We all know the rules, this is just lawyers telling us what to do.’ And that’s it—any pertinent information provided in the training is heard, but not understood.”
Sepler’s training for the EEOC’s Training Institute includes Respect in the Workplace: Creating a Respectful Environment for All Employees and Leading for Respect: How Supervisors and Managers Can Create Respectful Workplaces. These on-site, interactive, skills-based programs move away from compliance-based training filled with legal jargon and box checking, instead emphasizing respect and acceptable workplace behaviors. Key modules in the leadership training include how to respond to an employee complaint with emotional intelligence and how to coach an employee whose behavior isn’t quite bad enough to be deemed harassment but is teetering on the edge.
The employee training is about learning to give and take feedback in a respectful way. It also focuses on what it means to be a “good” ally or bystander. Sepler says the training shows employees that they should report harassment if they see it, but also how to effectively step in if they see someone being rude or dismissive to another employee, such as by deflecting the attention of the harasser to something else.
“This training really teaches employees how to create a healthy work environment without suggesting that they’re responsible for managing their supervisor’s behavior,” says Sepler.
Experts agree that bystander training should be a key focus in harassment training because victims of harassment may not feel comfortable reporting it for any number of reasons. Bystanders who witness harassment should feel empowered and supported by the company to step in and defuse any negative behaviors.
The Business Case Against Sexual Harassment
If a claim has surfaced, organizations may greatly benefit from employing a neutral, third-party investigator.
Keith Rohman, president of Public Interest Investigations Inc. in Los Angeles and president of the Association of Workplace Investigators, says, “It would undoubtedly be wise for employers to take appropriate, accountable action because it shows the employees that … if something bad happens in the workplace, they’ll take it seriously. Investigators play this role.”
Rohman says that a good-faith investigation demonstrates that a company took the allegation seriously by hiring someone who was neutral and independent—eliminating potential bias concerns.
“Even if the short-term consequences are embarrassing [for the company], the long-term payoff is that you’re building a better culture inside of the organization—one of trust, respect and safety,” he says.
If companies wish to conduct investigations internally, Rohman suggests that HR professionals receive appropriate investigator training. AWI provides intensive, week-long workshops in the area, and those who complete the program receive an American National Standards Institute certification.
He emphasizes that a sub-par investigation can do a lot of damage. “A crappy investigation can give rise to litigation just like a good investigation can make litigation less likely.”
In addition to damages incurred from a poor investigation, there’s an ever greater business case for addressing and preventing sexual harassment. Sepler, Houser and Polefrone all state that embracing and enforcing a respectful culture means that employees are more productive, engaged and healthy. In a hostile environment, a company’s bottom line will undoubtedly be negatively impacted through decreased attendance and retention, diminished productivity and increased use of health benefits.
There is limited research on the economic impact of sexual harassment on a company’s bottom line. However, according to the EEOC, in 1994 a typical Fortune 500 company in the U.S. with 23,750 employees lost $6.7 million a year in absenteeism, low productivity and staff turnover because of sexual harassment. When adjusted for today’s dollar, that number jumps to $14 million, according to economists.
“If you haven’t yet taken this seriously, don’t wait any longer,” Houser says. “Not investing the time right now to review policies and procedures, work environment and employee behaviors is missing an opportunity to protect your business.”