Over the past week, the US Equal Employment Opportunity Commission has sent a series of signals to US employers that it is focusing its energies on rooting out sexual and other forms of harassment in the American workplace. On Thursday, the agency announced that it had filed seven separate lawsuits against employers throughout the country over allegations of sexual harassment and misconduct, as well as racial harassment and other forms of abuse.
“As the nation has seen over the past nine months, harassment at work can affect individuals for years in their careers and livelihoods,” EEOC Acting Chair Victoria A. Lipnic said in a press release announcing the lawsuits. “There are many consequences that flow from harassment not being addressed in our nation’s workplaces. These suits filed by the EEOC around the country are a reminder that a federal enforcement action by the EEOC is potentially one of those consequences.” About a quarter of the lawsuits filed by the EEOC in recent years has involved an allegation of harassment, Lipnic added, as do one third of the 80,000 to 90,000 discrimination charges the EEOC receives each year.
The EEOC also recognizes that most instances of harassment never come to its attention. Studies show that more than 80 percent of harassment victims never file a formal complaint, the agency noted in its statement, while nearly three quarters never even raise the issue internally within their organizations. To that end, and in light of the heightened public consciousness of sexual harassment brought about by the #MeToo movement, the agency is also looking to promote changes in American workplace culture to make harassment less common and more likely to be addressed when it does occur.
On June 11, the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace, a panel of experts including academic scholars, legal practitioners, and representatives of advocacy groups and organized labor, which was established in 2015 to study the problem of harassment (including, but not limited to, sexual harassment) and what employers and the agency itself could do to prevent and respond to it. In her opening remarks at last Monday’s meeting, Lipnic, who co-chairs the task force along with Commissioner Chai R. Feldblum, stressed that harassment had been on the EEOC’s radar for some time, but that the government could not solve the problem alone:
Workplace sexual harassment may be committed by individuals, but if and when harassers feel able to freely engage in misconduct without fear of being caught or punished, that’s a problem for the whole organization. Specifically, it speaks to a culture challenge; the organization may have policies in place designed to prevent and stamp out sexual harassment, but victims don’t feel secure in reporting because the culture discourages it. Because of that, senior leaders may not find out about a harassment problem as early as they could.
But if culture is part of the problem of sexual harassment, it is also a part of the solution—and a growing concern among directors and shareholders. In a recent blog post at the MIT Sloan Management Review, Patricia H. Lenkov, founder and president of Agility Executive Search LLC, and Denise Kuprionis, founder and president of The Governance Solutions Group, discussed some of the steps boards can take to actively manage culture so as to mitigate the extensive legal, financial, and reputational risks associated with sexual harassment. They offer up some questions directors should be asking in their dialogue with management about the organization’s policies and practices:
How do our current policies measure up to best practices?
Too often, the board does not read company policies or require human resources leadership to review policies and procedures annually to gauge the effectiveness of the reporting process. Directors may think this level of review is “stepping on management’s toes.” However, the board must determine whether the company’s current policies and procedures related to preventing workplace sexual harassment and discrimination are adequate. Asking HR how these policies are communicated and to define “best practices” is not crossing the management/board line. Directors should weigh in on whether the CEO and the management team are communicating the right message.
Do employees trust and use our procedures for reporting harassment?
While there are many methods and procedures organizations use for employees to report harassment or complaints, hotline calls to a company’s dedicated ethics line are a good example. Board directors sometimes utter a sigh of relief when they hear there have not been any hotline calls at their organization, but it’s a common misconception that few calls to the ethics line equates to a “good” company culture. In an open and trusting culture there are many calls — calls for how to handle a matter, calls for clarification, and, yes, some calls that report a potential problem. Informed directors ask how many calls are received in a given time period and require that calls be categorized. …
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.”
Washington Governor Jay Inslee on Wednesday signed a suite of legislation that will make it illegal for employers to use non-disclosure agreements and other contractual provisions to stop employees from reporting or discussing sexual harassment and assault in the workplace, The Hill reports:
One of the bills Inslee signed would prohibit employers from requiring nondisclosure agreements that would stop individuals from speaking out about sexual assault and harassment in the workplace. Another will prevent nondisclosure agreements from barring employee testimony in civil lawsuits relating to assault or harassment claims. That bill also allows those bringing the suits to conduct discovery on previous harassment claims.
Inslee also signed a new law voiding employment contracts and arbitration agreements that preclude an employee from filing assault or harassment complaints outside their companies.
Washington is the first state to take this kind of action in the wake of the #MeToo movement that revealed the still-high prevalence of sexual harassment and misconduct in the American workplace, including the statehouses in Olympia and other capitals.
The important conversation that has been taking place over the past six months in the US and around the world about sexual harassment in the workplace has focused mainly on the challenges women face in male-dominated industries where men in power feel free to take advantage of their female employees. Indeed, as the #MeToo campaign has highlighted, women experience sexual harassment and misconduct in the workplace at alarming rates, while many more are treated as inferior to their male colleagues in other, less overt ways.
The victims of sexual harassment are by no means exclusively women, however. Marketplace reports on a new survey it conducted in partnership with Edison Research in which 14 percent of men said they had personally experienced sexual harassment in the workplace. Also, 17 percent of all sexual harassment allegations filed with the US Equal Employment Opportunity Commission in 2017 were filed by men.
If sexual harassment of men is less often discussed than that of women, that may be because men are less likely to report when they have been sexually harassed. “For men,” Marketplace’s Peter Balonon-Rosen and Kimberly Adams write, “stigma attached to sexual harassment can be a barrier to reporting it”:
“The biggest factor is that men are embarrassed,” said Todd Harrison, a partner at a California law-firm that specializes in employment law and sexual harassment cases. “They have pride that gets in the way, they don’t want to complain about it, especially to their male co-workers.” …
The Women and Equalities Committee of the UK Parliament has initiated an inquiry into sexual harassment in the workplace and what employers and the government can do to better prevent and address it. The inquiry will look at:
- action that the Government and employers can take to change workplace culture, increase confidence to report problems, and make tackling harassment a higher priority
- how staff can be better protected from sexual harassment by clients, customers and others
- how effective – and accessible – tribunals and other legal means of redress are, and what improvements could be made to those systems
- the pros and cons of using non-disclosure agreements (NDAs) in sexual harassment cases, and what can be done to prevent inappropriate use of NDAs.
In its announcement of the inquiry, the committee points to a recent survey conducted by ComRes on behalf of the BBC, which found that 40 percent of women in the UK have experienced some form of sexual harassment at work, with women in the 18-34 age demographic reporting slightly a higher rate of prevalence. Another study in 2016 came up with even higher numbers, finding that 52 percent of women (and 63 percent of those aged 16-24) had experienced unwanted behavior including groping, sexual advances and inappropriate jokes in the workplace.
The committee gathered oral evidence on the subject at a hearing in January, from a group of employment experts including the Confederation of British Industry’s Managing Director Neil Carberry and Ksenia Zheltoukhova, Head of Research at the CIPD. At that session, these experts stressed the importance of enabling victims of harassment to feel safe in reporting it, which means changing not only policy but also culture, as Carberry put it:
Last week, Facebook made public its internal policies on sexual harassment, in what Chief Operating Officer Sheryl Sandberg and VP of People Lori Goler described in a blog post as an effort to advance the conversation about how companies can best protect their employees and help smaller companies design policies of their own:
Many people have asked if we’d be willing to share our policies and training guidelines, so today we are making them available publicly—not because we think we have all the answers, but because we believe that the more companies are open about their policies, the more we can all learn from one another. These are complicated issues, and while we don’t believe any company’s enforcement or policies are perfect, we think that sharing best practices can help us all improve, especially smaller companies that may not have the resources to develop their own policies. Every company should aspire to doing the hard and continual work necessary to build a safe and respectful workplace, and we should all join together to make this happen.
The policies, the executives add, go above and beyond what is required by law, proscribing “intimidating, offensive, and sexual conduct even when that conduct might not meet the legal standard of harassment.” The policies spell out in detail what constitutes such conduct, including derogatory or insensitive jokes, pranks, or comments; slurs or epithets; unwelcome sexual advances or invitations; and non-verbal behavior such as staring, leering, or gestures. They also make clear that “I was joking” or “I didn’t mean it that way” are not valid excuses for these unacceptable behaviors, nor is being under the influence of alcohol.