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. …
Sexual harassment is an endemic problem in the US academic science community and a major barrier to progress toward including more women in the field, a new report from the National Academies of Sciences, Engineering and Medicine concludes. While physical abuse and unwanted sexual advances are common, the most pervasive form of misconduct is what the report terms “gender harassment,” referring to hostile work environments in which women are routinely subject to sexist comments and crude behavior from their male colleagues, sending the message that they are not welcome there, as contributors to the report tell the Associated Press:
“Even when the sexual harassment entails nothing but sexist insult without any unwanted sexual pursuit, it takes a toll,” said University of Michigan psychology professor Lilia Cortina, a member of the committee that spent two years studying the problem. “It’s about pushing women out.”
The report complies data from multiple large surveys to get a sense of how pervasive sexual harassment and gender discrimination are in the academy. One survey from the University of Texas found that 20 percent of female science students, more than 25 percent of engineering students, and over 40 percent of medical students reported being sexually harassed by faculty or staff. Another survey from the Pennsylvania State University system found that half of all female medical students had been harassed. Women working in university science departments experience harassment as well as students: 58 percent of academic employees report having been sexually harassed at work.
Sexual harassment “has long been an open secret” in the sciences, MIT professor and report co-chair Sheila Widnall told the AP on Tuesday. In its coverage of the report, the New York Times highlights the panel’s recommendation that universities and research institutions start focusing on prevention and fixing the work environment, rather than just “symbolic compliance with current law and avoiding liability”:
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.
The US Supreme Court ruling on Monday upholding employers’ right to include arbitration agreements and class action waivers in employees’ work contracts is being celebrated by business associations and employer-side attorneys as a major victory, mitigating the risk of expensive litigation over labor disputes that may arise from honest mistakes rather than deliberate malfeasance. Advocates of arbitration say it is faster and cheaper than a courtroom trial and that the confidentiality of arbitration is a benefit to both employees and employers (though critics, of course, disagree on all of these points).
What individual arbitration does not protect organizations from, however, is reputational risk. We’ve seen this in the public blowback against companies whose arbitration policies are interpreted as them trying to hide ongoing discriminatory behavior. Within the past six months, companies like Microsoft, Uber, and Lyft have abandoned forced arbitration of harassment cases to guard against this risk. The public relations downside to handling these matters quietly may be growing to outweigh the upside in terms of cost and legal risk.
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:
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.