Our employment law partner Scott Grubin offers some of his thoughts on ending sexual harassment in the midst of the #MeToo movement.
We’ve reached a critical moment in the discussion regarding sexual harassment. Has the #MeToo movement ushered in an end to the scourge of sexual harassment in the workplace?
As an employment lawyer and former human resources executive, I’ve interviewed victims, perpetrators, and their colleagues as part of investigations into the allegations that form the basis for these claims. I’ve conducted training sessions and revised policies and employee handbooks. I’ve represented employees and employers in all phases of these cases. This work often takes me into the seamy underbelly of the workplace.
My experience leads me to the inexorable conclusion that we will not put a stake in the heart of sexual harassment by the ongoing seemingly breathless reporting of another fallen star, legislative fixes, more or different policies, and workplace training. However, it is important for these efforts to continue to keep the issues top-of-mind and move ever closer to more systemic changes. (In fact, it is important to re-double training, create more robust protocols, and implement even more rigorous safeguards against retaliation).
Sexual harassment is essentially zero sums. The victim, the perpetrator, the employer, and workforce all suffer, of course in different ways, in the face of these allegations. Public reporting, getting rid of employment arbitration, and diversity targets are among the many good ideas being offered to end sexual harassment. However, our best chance to “cure” or rid the workplace of sexual harassment lies perhaps in enabling employees and leaders to interact and react better to workplace behavior and incidents. This holistic solution has three interrelated components: (i) empowering employees to be career savers, (ii) empowering managers to squelch bad behavior on the spot, and (iii) having employers embrace the importance of examplism. Here’s what I mean.
The Workplace Needs Career Savers. While the accounts of victims and perpetrators may diverge, the interviews of their colleagues often share a common thread – guilt and remorse. They recalled how months before the victim’s penultimate complaint of being groped in a dark corner of a crowded restaurant, they overheard her teary office phone call describing how she fended-off her boss during an earlier business trip. Others recalled a perpetrator showing a lewd text message just before he sent it to a female subordinate. As the colleagues of the victims and perpetrators told me about their recollections of these events they grimaced, some welled-up with emotion, and others exhibited anger and frustration for their inaction. Most acknowledged having wished they did something.
Their rationales or excuses for inaction were all very reasonable. But their inaction had a profound cascading effect. A colleague suffered as a victim of sexual harassment, the perpetrator was fired, their respective families grappled with their predicament, the workplace struggled to manage its business and service its client during the investigation and its aftermath. Had they intervened after overhearing that teary conversation or swiped-away their colleague’s cell phone before he sent that lewd text, the likelihood of a more positive outcome, or shall we say less negative outcome increase.
Call-out Bad Behavior on-the Spot. However, these line employees won’t intervene and become so-called Career Savers unless they see managers who intervene. Managers need to actively manage. If a manager hears an inappropriate remark or observes wrongful conduct, they cannot walk by and pretend not to have heard it. They can’t leave it unaddressed in the moment, plan to make a note of it, and discuss it with the offending employee at some later point. In short, managers no longer have the luxury to defer the opportunity to confront.
Certainly, some line employees will have observed the wrongful conduct and will be making a mental note of how it was handled – or not. Management’s willful blindness, actual or apparent, does not go unnoticed by potential perpetrators and potential victims alike. The troubling behavior needs to be rebuked – in the moment. If it occurs in an open seating area, employees need to be confronted there and managers need to resist the temptation to have the conversation in a conference room off-the-floor. The message is straightforward and does not need talking points. The offender simply needs to understand then – and there – that the behavior won’t be tolerated and that any second conversation regarding that issue will be much shorter.
Examplism is important. A former mentor once told me, sometimes someone has to get fired. Some of the most recognized global brands seem to have taken that advice to heart. Indeed, terminating someone for their misconduct creates a deterrent effect as it sends a message through the workplace that there are severe consequences for engaging in sexual harassment. Such actions may even have the collateral effect of emboldening others to come forward with their own allegations.
It is too early to conclude whether the recent firings of prominent people in storied positions at some of the most recognized global companies and iconic institutions in connection with sexual harassment has that effect or will even influence behavior with smaller employers, where employees might be even more reluctant to complain about misconduct. To that end, some argue these recent firings or other efforts are unlikely to deter the lecherous behavior of a manager running a small business.
Employers would be well served not to interpret the absence of any complaints as a sign of workplace health free from sexual harassment. A late 2017 Quinnipiac College Poll reported that 60% of women in the workplace experienced sexual harassment. Employers would be better served by enabling these workplace behaviors.
Workplaces are inherently complex social, cultural, and commercial enterprises. As a result, there is no silver bullet to ending sexual harassment in the workplace. Relentless attention to enabling these key behaviors just might get us closer.