Since the #MeToo movement brought the issue of workplace sexual harassment to the forefront of public consciousness last year, many employers in the US and around the world have been reconsidering some of their policies and practices to reduce the likelihood of misconduct occurring or being tolerated within their organization. During last winter’s holiday season, more employers decided against serving alcohol at their office holiday parties, mindful of the risk that a drunk employee could engage in sexual harassment or other behavior that would incur liability for the organization. Others eschewed open bars in favor of drink ticket systems that limited employees to just two or three drinks, or other methods for discouraging overconsumption.
Now that summer is here, US employers are looking at another season of office parties, outings, and happy hours where these risks must be considered yet again. At The American Lawyer, reporter Meghan Tribe looks into how Big Law firms are rethinking their perks for summer associates, high-achieving law students exploring careers at the firm, who have traditionally enjoyed boozy dinners and other events over the course of their summer associate program jobs. Patrick Krill, a behavioral health consultant for the legal sector, explained to Tribe that, “In light of #MeToo movement, an open bar at a summer associate event is potentially a tinderbox of liability,” particularly since so many workplace sexual harassment claims in the industry are linked back to events with alcohol.
As an alternative, Tribe reports, some firms are redesigning their summer associate programs around events that don’t involve drinking. The itinerary for Goodwin Procter summer associates this year, for example, includes spin classes, cooking classes, and trips to the theater. The firm has also mandated anti-harassment training for all its employees (including summer associates), and will limit the availability of alcohol at work functions. Aside from the liability concerns, Goodwin Procter views its revamped summer associate program as an opportunity to communicate its culture and values, as well as demonstrate that it has gotten the message of #MeToo.
Organizations or teams planning summer events can take a few lessons from what these law firms and other companies are doing.
Despite the #MeToo movement bringing the problem of sexual harassment in the workplace to the forefront of the public consciousness in the US and around the world, a recent survey from the American Psychological Association’s Center for Organizational Excellence finds that most American workers don’t see their employer taking new action to prevent or stop it. The association gives an overview of the survey at Phys.org:
Only 10 percent of U.S. workers said their employer has added more training or resources related to sexual harassment since the recent increased media and public attention on this serious workplace problem. Just 8 percent said their employer implemented a more stringent policy related to sexual harassment, and only 7 percent reported that their employer hosted an all-staff meeting or town hall to discuss sexual harassment.
Research has shown training to recognize and report sexual harassment isn’t enough to change employee behavior or a workplace culture where harassment is more likely to occur. Instead, psychologists recommend a comprehensive approach that incorporates fair policies that are clearly communicated, ongoing training, leadership support of a civil and respectful culture, and the hiring and promotion of women into senior leadership roles.
It is certainly easy for companies to fall back on training as a solution when their main concern is mitigating liability. However, sexual harassment training is arguably better than no response at all; at the very least, it acknowledges that sexual harassment exists and signals to employees that the organization does not intend to simply sweep it under the rug. Without that acknowledgment from an organization and its leaders, by comparison, employee morale and confidence in the organization’s ability or willingness to handle harassment can suffer greatly. This can send organizations into a self-destructive feedback loop: Lack of acknowledgement and action from leadership discourages employees from reporting, which causes leaders to believe that their organization doesn’t actually have a harassment problem. This makes the fallout all the more damaging when it eventually comes to light that they were wrong.
In a white paper my colleague Lori Lipe and I are currently writing, we look at some of the beliefs that hinder employees from reporting sexual harassment. What we are seeing is that employees’ perception of whether harassment is actually taken seriously at the organization factors heavily into their consideration of the costs and benefits of coming forward. In our latest Global Labor Market Survey, CEB, now Gartner, found that employees are significantly less likely to report when there is a gender imbalance at the top management team, particularly when it is male-dominated. This perception likely stems from the skepticism that male leaders may not take harassment as seriously and therefore dismiss accusations or be unmotivated to pursue justice. This relationship is also evident in the findings of the APA survey:
In a 5–4 ruling handed down on Monday, the US Supreme Court ruled that organizations can legally require their employees to sign arbitration agreements in their work contracts and waive their right to resolve labor disputes through class-action lawsuits. The court split on ideological lines, with the five conservative justices voting to allow class action wavers and the liberal minority dissenting, the New York Times reported:
Writing for the majority, Justice Neil M. Gorsuch said the court’s conclusion was dictated by a federal law favoring arbitration and the court’s precedents. If workers were allowed to band together to press their claims, he wrote, “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.”
Justice Ruth Bader Ginsburg read her dissent from the bench, a sign of profound disagreement. In her written dissent, she called the majority opinion “egregiously wrong.” In her oral statement, she said the upshot of the decision “will be huge under-enforcement of federal and state statutes designed to advance the well being of vulnerable workers.” Justice Ginsburg called on Congress to address the matter.
The ruling, which the Times adds could affect some 25 million employment contracts, comes nearly a year and a half after the high court agreed to hear a group of cases on the legality of arbitration clauses and class action waivers. It was not unexpected, given the court’s conservative majority and the inclinations Gorsuch and his right-leaning colleagues have shown in other labor-related cases.
Business groups and employer-side attorneys cheered the ruling, which they say will free companies from burdensome litigation and allow disputes to be resolved through the cheaper and speedier process of arbitration. Labor rights advocates expressed dismay, however, warning that it would result in a rollback of employees’ fundamental rights and would prove particularly disastrous in discrimination and harassment cases. In a Times op-ed, Terri Gerstein and Sharon Block, of Harvard Law School’s Labor and Worklife Program, criticize the ruling for taking away a key safety net for employees:
The freelance hiring and management platforms Fiverr and AND CO have teamed up to create a new standardized work contract for freelancers that they are calling the first of its kind to include built-in protections against sexual harassment, Ephrat Livni reported at Quartz on Wednesday:
The new contract explicitly states that harassment by clients or staff isn’t tolerated, which may seem obvious but isn’t a fundamental aspect of most freelance arrangements. The agreement also gives freelancers the right to terminate an arrangement if offending behavior continues after the client has been informed of it. A contractor who quits on these grounds must then be paid in full for the project or the month—depending on the terms of their arrangement with the client—and must receive that pay within 30 days.
Sounds decent, right? Well, it is. But it’s also not much, as the companies also admit. “We recognize this is a small step in a much longer journey, but it’s an important one,” they state.
After all, a big problem with harassment in the workplace is that it’s awkward to report in the first place, and all the more so when the perpetrator of the abuse is responsible for the paychecks. Despite the new clauses, contractors who are harassed by the clients who hired them aren’t very likely to feel comfortable demanding that abuses stop—not if they want to work for that client again. And few freelancers who are in an office on a contract basis will find it easy to complain about abusive staff with permanent positions.
These caveats highlight one of the fundamental perils of a labor market in which more workers are self-employed and fewer enjoy the protections that come with a formal employment relationship with a single organization. The #MeToo movement has sparked a long-overdue conversation about sexual harassment and misconduct in US workplaces, which has sent organizations and governments scrambling to find better ways to protect workers against these crimes. Most of these laws and policies, however, focus on employees, with independent contractors getting less robust protection, if indeed they have any at all.
Writing these protections into contracts is one way to help address the abuse of freelancers; another is to enshrine them explicitly in the law.
Since March, Nike has been conducting a massive overhaul of its company culture, executive leadership, and HR practices after a covert survey of female employees revealed widespread patterns of sexual harassment, discrimination, and hostile work environments for women. As the New York Times recently reported in a major story reviewing the upheaval, this toxic culture was driving talented women out the door. In recent months, several high-level male executives at Nike have left the company amid the scandal.
Some of these executives stand accused of engaging in sexist practices themselves; others do not, but have been faulted for failing to address employees’ concerns, creating the perception of an executive “boys’ club” in which male managers were protected from consequences for their misbehavior. Another key theme in the Times‘ report is the Nike women’s dissatisfaction with the response they received from HR.
Nike CEO Mark Parker has moved quickly to bring the situation under control and assure employees that the company is taking its culture problems seriously. At an all-company meeting last Thursday, Parker admitted that he and other executives had missed signs of the problems that have come to light recently, apologized to the affected employees, and promised a thorough investigation into their complaints, along with changes to the company’s training and compensation practices to make them more inclusive, particularly toward women.
While Parker and his executive team will be responsible for making these needed changes to Nike’s culture and practices, none of these changes would be possible without the women employees who took the initiative to bring the company’s problems to light. One important takeaway from this story, therefore, is the power and promise of employee-led D&I initiatives.
Since last year, the #MeToo movement has blown a hole in the shroud of secrecy that has long surrounded the scourge of sexual harassment at companies of all forms, sizes, and industries, both in the US and around the world. Yet just as the public consciousness of this issue is growing, more sexual harassment complaints are being handled behind closed doors than in the past. The US Equal Employment Opportunity Commission and equivalent state agencies received 41 percent fewer complaints in 2017 than they did in 1997, Bloomberg’s Jeff Green points out—not because fewer employees are getting harassed, but rather because companies have become much more likely to handle these matters internally:
Ninety-five percent of companies now have an in-house complaint process, the Society for Human Resource Management said in a January report. Eighty-two percent have an investigation protocol in place. …
At the company level, HR departments don’t always know the extent of their own problems. The same SHRM report found a wide disconnect between what HR sees and what employees are saying. Three out of four non-manager employees who experienced harassment said they did not report it. At the same time, 57 percent of human resource professionals said that unreported sexual harassment occurs “to a small extent.”
Around 40 venture capital firms have joined a new project called MovingForward, which “gathers VC commitments to foster a diverse, inclusive, and harassment-free workplace.” Participating venture firms are sharing their own policies against sexual harassment and discrimination, contact points for entrepreneurs to ask questions and report problems, and statements on their efforts to combat harassment and promote diversity and inclusion.
Although not all the participating firms are making both their internal and external policies public, Recode’s Theodore Schleifer reports, the creators of the initiative say they have encouraged several VCs that did not have anti-harassment policies to create them:
Most venture capital funds do not have human resources departments, and even if they have an internal policy that defines and punishes harassment, it generally has only applied internally to their firm — not to the entrepreneurs that they interview and fund. …
“This effort has created a movement within the VC partnerships to do something,” [co-creator Cheryl] Yeoh said, telling Recode that she believed she has set off a “scramble” within venture capital firms to craft policies or identify a contact. She claimed that around half of the firms did not have policies applying to entrepreneurs or publicly identified points of contact before she pitched them.