Getting Tough on Sexual Harassment

All employers are under pressure now to say what they are doing to address workplace sexual harassment. This topic is thought by many to be the most important story of an already tumultuous year. The issue matters both ethically and practically, too, as how companies address–or fail to address–workplace sexual harassment affects potential applicants and hiring, customer perceptions and, of course, employees.

A caveat to this concern is the fact that some in corporate America have been very tough on sexual misconduct. For instance, the CEOs at companies like Best Buy and HP were forced out of their jobs for behavior that fell well below the legal standard for sexual harassment. Most of the egregious behavior we’ve heard about recently took place at organizations without an HR department willing to enforce the law, such as at the Weinstein Co., where the alleged harasser was running the company and overriding enforcement, as was also the case with Uber. There were also instances where the alleged harassers were so powerful that leadership saw them as immune to rules, as with Bill O’Reilly and Kevin Spacey.

Blanket statements about a “zero-tolerance” policy toward sexual harassment sound good, but executing such a policy is a nightmare without clear standards regulating what is prohibited and how that will be enforced. Here is a guide for employers that do not have policies in place about sexual harassment at work, or for those thinking about changing them.

What is Sexual Harassment?

To make sense of what employers should be doing about inappropriate workplace behavior, it helps to start out with some definitions. Sexual assault is a crime in any context, and employers have every right to–indeed should–turn those cases over to the police. Then there is sexual harassment, which is where confusion starts because it has both a popular meaning and a legal definition.

The legal definition of sexual harassment is clearer than the popular definition, but even here the meaning has changed over time with new court rulings. It begins with the fact that the conduct has to be sexual in nature, and that a “reasonable” person would be affected negatively by it. If the individual experiencing it feels harassed but a neutral observer does not agree, then it doesn’t meet the qualifications of sexual harassment. Also, the behavior must have been pervasive and severe; a one-time encounter has to be pretty extreme, such as a threat or promise of a job in return for a date, to meet the test.

A workplace can also be considered “hostile” within the sexual-harassment law even if no one individual is responsible for the workplace environment. Offensive pictures, pranks and so forth contribute to creating a hostile work environment only if that context would affect the mental stability of a reasonable individual.

Employers are required to prevent the sexual harassment of their employees, applicants and, in some contexts, contractors in their workplace. Of note, employers should be aware that men, too, can experience sexual harassment: The Equal Employment Opportunity Commission, which enforces laws on discrimination and sexual harassment, reports that about 17 percent of complaints brought forward about sexual harassment are from men.

While the law requires employers to remedy sexual harassment, it does not always make clear what that remedial action should be. The human resource department is charged with protecting the company from the consequences of violating employment laws, but it is not an arm of the government, and it takes its orders from the leaders of the company. A get-tough approach requires that employers decide what constitutes inappropriate sexual behavior at work and enforce such policies company-wide.

Setting the Standard

Nothing prevents employers from requiring a higher standard of behavior than is specified in the law, and most do. Setting that standard is where complications arise.

One complication is that dating at work is an extremely common practice. A Harris survey conducted for CareerBuilder last year found that about a third of respondents had dated someone at work, and one third of those individuals reported that it led to marriage. While it sounds simple to just prohibit sexually oriented behavior at work, that would also mean stamping out dating.

The second concern is that beliefs about what constitutes sexual harassment vary and are typically quite different from the definition in the law. According to the Wall Street Journal, an EEOC study concluded that about a quarter of women reported experiencing sexual harassment when they were given a standard definition of it, while about half said they experienced it when they were allowed to define it themselves.

The popular definition of sexual harassment today, reflected in recent surveys reported by the WSJ, is sexually oriented attention that the respondent does not want, a standard much broader than the legal definition. A recent survey by YouGov found that views on what counts as sexual harassment varied considerably, not just among men and women but also Republicans and Democrats of the same sex and age. Younger men and women believe sexual harassment is more widespread than their older counterparts; a quarter of young women, for example, say that being asked out for a drink by a co-worker is sexual harassment.

According to the Society for Human Resource Management, about 40 percent of employers have policies restricting dating, most commonly prohibiting supervisors from dating their direct reports–about one in 10 of those policies prohibit dating altogether. Another way to look at this is that 60 percent of employers have no rules on dating. The Harris survey noted above found that about a quarter of those who had dated in the workplace were romantic with a subordinate, where power imbalances can easily lead to sexual-harassment charges, especially if the relationship goes south.

Dating subordinates is so fraught with negative outcomes, from perceptions of bias by peers to coercion, that prohibiting it is a good start in any policy. The most unusual practice for dealing with office dating is a “love contract,” a legal statement between the two people involved in an office relationship that the relationship was consensual and that neither will hold the employer liable for complaints they may have about the person they are dating.

Should companies go further than ruling out dating subordinates? In practice, that means easing the “pervasive and severe” standard from the legal definition of harassment while leaving the first two components–that the behavior has to be sexually related and a reasonable person would see it as a problem.

The variation in views as to what constitutes sexual harassment means that leaders have to begin by recognizing that no standard is going to make everyone happy. Also, the broader the standard, the more difficult it is to enforce because more judgments are involved and the appropriate redress becomes more difficult.

Whatever the standard is, conveying it raises the issue of training, which helps people understand what is prohibited and what to do if they think a policy is being violated. Sophisticated programs to get at the heart of the behavior can also help employees improve their interpersonal skills, especially emotional intelligence. At companies that allow dating, for example, life would be much easier if employees understood when they are making others uncomfortable–such as repeatedly asking someone out on a date who has already said no–as well as how they should deal with behavior that begins to make them uncomfortable. Yes, we are all supposed to be adults here, but the plain fact is many people do not have these skills.

Enforcing that Standard

Once there are rules developed and employees understand them, HR has to enforce them. The good news is that frameworks for dealing with bad employee behavior already exist, and HR has been using them for generations. The premise behind these practices is that fairness is important. A lot of damage is certainly done by sexual misconduct, but damage is also incurred if innocent people are accused and punished. Thankfully, these two concerns do not have to be in conflict.

Good practice starts with establishing the facts about complaints. Employees are rarely clear-eyed about how they see their own behavior, especially as it relates to others. To illustrate, the EEOC reports that only about 6 percent of sexual-harassment claims brought to it meet the test of “reasonable cause,” or rather its judgment that harassment occurred–and roughly a quarter of all those claims eventually end up being negotiated or resolved in some way. That does not mean that bad behavior didn’t happen, only that the law wasn’t violated. But it does suggest that those bringing complaints are not always good judges of how their situation relates to policies.

When there is a complaint, HR needs to conduct an investigation to figure out the facts. A reasonable definition of a “zero-tolerance” policy is to make it clear that every complaint will be taken seriously to establish the facts. To make an obvious point, the person against whom the complaint is made should not be involved in this process, even if he or she is a senior employee. However, he or she should certainly be interviewed. HR leaders may feel inclined to shield the person complaining from retaliation by the alleged harasser, but it is simply not possible in an investigation, nor fair for the accused, not to know who is bringing the complaint.

If the person being accused is a leader in the organization, it often makes sense to bring in an outside expert to conduct the investigation and to give the investigator freedom to do the job right. Just as important is letting people know the investigation is independent. This is an expensive process, but getting things wrong at such a point is even more costly, as we see from companies in the headlines now.

An investigation is like police work: gathering and reviewing documents such as emails, interviewing witnesses and perhaps getting written statements. Employees don’t have Fifth Amendment rights not to self-incriminate in the workplace–they are required to cooperate and can be fired if they refuse.

Once witnesses have been interviewed, those involved should decide credibility and resolve conflicting accounts. The goal here is to be fair but also to move quickly. This is best done by a small group of managers who are not otherwise involved in the allegations or investigation. Yes, that sounds like a jury, but this process does not otherwise have to look like a courtroom. The standard of proof is certainly not the criminal standard–beyond a reasonable doubt–nor does it have to be the standard of civil liability described earlier, as that would require that the employer wait until it was legally liable to act. A tougher but common standard for discipline here, and in all cases of misbehavior, is determining whether the accused acted needlessly and contrary to the best interests of the employer.

What Happens Then?

If the group decides that improper conduct occurred, what should the consequences be? Here, things do begin to look more like the legal world. A minimal goal is to ensure that the improper conduct doesn’t happen again. If the misconduct was severe and reflects willful disregard of the employer’s rules and of co-workers’ legitimate interests, the accused will usually be fired. If the bad conduct was milder and isolated, and if the accused cooperated and expressed regret, a lesser form of discipline, such as a written or oral warning, may suffice. Given that the best predictor of future behavior is past behavior, the work history of the accused matters as well: Someone with a clean record over a long period of time should certainly be treated differently than someone with a pattern of poor behavior.

The enforcement step is what the workforce and outsiders will see, so here company leaders engage issues that are not present in the legal system. For example, they may decide that it is necessary–for the company culture or to change impressions about the organization–to take a tough and public stand on penalties, where they might not have done so at a different moment in time. This is also where the company may find its hands tied by its own pronouncements. “Zero-tolerance” policies without definitions may cause the company to feel that it now has to fire people for even minor offenses or risk appearing hypocritical. In states like California, where employees have more protections against unfair dismissals, it is important for employers to be consistent and avoid sharp changes in disciplinary practices.

No doubt, most did not think they would be drafting rules for dating when they set out for a career in business, and many are frustrated at rules and processes that seem to turn their workplace into The People’s Court. But there are reasons why policies and practices like the ones above have been developed–they may be the only way to protect employees from bad behavior without creating more problems in the process.

Peter Cappelli and Dan O'Meara
Peter Cappelli is the George W. Taylor of Management at the Wharton School, and Dan O’Meara is a Partner at Ogletree Deacons. They co-host the radio show “In the Workplace” On SiriusXM Channel 111.