Adapting to the New Risk Landscape

For three decades employers have had a clear playbook for responding to workplace harassment: Investigate promptly. Respond reasonably. Discipline privately. The risks companies faced around harassment were primarily legal: Bad situations might end in lawsuits. But lawsuits, for all their headaches, can be managed. Though the playbook seemed to work, it didn’t. Over time a rift opened between employers’ efforts to reduce litigation and employees’ expectations about what was fair and right. When targets were reluctant to speak publicly and employees were disciplined in secret, outrage was contained — confined to confidential conversations and gossip. That gave employers a false sense of security and allowed them to respond privately and — too frequently — keep harassers on the payroll. All of that unraveled in recent months, to many employers’ surprise. The media has now become a Monday morning quarterback, second-guessing executives’ past decisions. Harassment claims increasingly are ending up in the court of public opinion, which has no rules of procedure or statute of limitations. With a few negative tweets, a company’s image can suffer real damage, both externally and internally. This moment feels fraught with peril. In a way, it is. Reputational damage from a harassment scandal can be catastrophic and difficult to repair. Doing nothing isn’t an option. Even if your company escapes public scrutiny, there are still internal risks and costs to navigate. Managing in this new environment means reevaluating how your organization responds — not just to sexual harassment but also to harassment based on race, religion, or national origin — and examining how you approach larger questions of workplace equality. Here’s what you need to realize: Your employees and customers are all paying attention to how everyone is treated in your workplace. It’s time to make sure you’ve adjusted to this new reality. New Expectations Challenge Old Measures In many ways, the playbook for responding to harassment claims predates the claims themselves, according to research from sociologists Lauren Edelman and Frank Dobbin and Erin Kelly. After Title VII of the Civil Rights Act of 1964 was passed, government employers started adopting internal policies and procedures to prevent discrimination on the basis of race, sex, national origin, and religion. In the 1970s those practices began to spread to the private sector. As early as 1979, HR professionals pushed firms to build organization-wide awareness and develop and internally publicize procedures for confidential reporting, as well as institute anti-harassment training and rapid responses to complaints, even though a solid legal basis for those procedures hadn’t developed yet. The U.S. Supreme Court didn’t recognize harassment as a form of discrimination until the 1986 case Meritor Savings Bank v. Vinson. It was then that the compliance playbook — a combination of policies, procedures, and training — gained force, despite limited evidence that it would protect employers in court. Then, in 1998, Faragher v. City of Boca Raton gave employers a new way to reduce the risk of costly claims by allowing them in some cases to avoid liability if they had taken reasonable measures to prevent or address harassment. In theory, the ruling on Faragher seemed to encourage effective prevention practices. But it actually did the opposite. Lauren Edelman’s research has found that courts tend to give employers credit even when their investigation process and remedial measures are questionable. As a result, employers have had little incentive to evaluate their programs or innovate in their approach, and anti-harassment programs have become an exercise in box-checking for legal protection. Responding to New Risks Reporting processes, anti-harassment training, written policies — all those things used to be routine, even boring. Now, suddenly, a corporate star with a history of dubious behavior is a ticking time bomb for your brand, and every aspect of the compliance infrastructure — from hiring, to training, to disciplinary practices — is being scrutinized with fresh skepticism. This is an important moment to revisit the way your organization addresses harassment, to make sure it’s not meaningless box-checking. That means identifying and articulating the culture, norms, and standards of behavior you would like to promote — and demonstrating that if those standards are violated, you’re prepared to enforce them with discipline. Not only is this approach more credible to employees, but it can help an organization respond quickly should a crisis hit. Let’s break down the risks of the old playbook, as well as the opportunities a more values-driven approach presents. Risk: Your employees don’t consider your complaint process fair. Internal complaint processes aren’t limited to the formal investigation HR does in response to a report of harassment; they also include the associated decision-making process. If recommendations from HR and the legal department are routinely vetoed by powerful managers or departments, employees will notice. HR managers will draw back, saving their limited influence for battles they can win. The credibility — and effectiveness — of compliance systems as a whole will be eroded. A lack of trust in employers’ processes may explain why in some recent public scandals, multiple employees recounted experiences of harassment or assault while companies insisted they’d received no complaints. In announcing Matt Lauer’s firing, for instance, NBC stated that it had not received any formal complaint until that week, even as employees told Variety magazine stories of corporate indifference. Both the network’s and the magazine’s assertions could be accurate. If employees don’t have confidence in a system, they won’t use it. When formal complaints aren’t taken seriously or people feel that making them will hurt their career prospects, employees will stop reporting harassment. But in all probability they’ll share their concerns informally with friends and colleagues, and the bad behavior will become an “open secret” that’s difficult to manage. Or, a harassed employee might decide to take their story to the media. Opportunity: Now is a good time to survey employees about your internal processes, including those related to decision making. If their responses reveal widespread dissatisfaction, it’s worth engaging them in designing a better system. You should also do a data-driven analysis of how your investigation and disciplinary processes compare with other firms’. Compliance companies like Convercent and Navex Global have tools that allow organizations to benchmark their reporting rates, substantiation rates, and disciplinary sanctions against industry averages. Although the averages won’t identify systematic errors if everyone else is making them too, benchmarking can still help you spot gaps in your systems. Risk: Women and other underrepresented groups are not hired, promoted, and paid on an equal basis. Title VII of the Civil Rights Act — the federal statute that prohibits harassment — broadly protects employees’ right to equal opportunities. These opportunities include informal ones like mentoring, networking, and access to clients. In organizations where the highest rungs are occupied primarily by white men, a failure to provide those informal opportunities to women and other underrepresented groups is easy fodder for a discrimination claim. In 2010, 5,600 female sales representatives sued the drugmaker Novartis, claiming that their careers were stalled on the lower rungs of the corporate hierarchy as a result of a “boys’ club…in which male employees take care of each other at the expense of women.” They also argued they were disproportionately excluded from an important training program. Novartis settled with the women for $175 million after losing a jury trial. But it doesn’t take a “boys’ club” to create a discriminatory environment. Men who — in this new environment — think that avoiding women altogether protects them from harassment claims should think again. Not providing women opportunities for fear of inadvertently harassing a coworker is no legal defense. To the contrary, it may help prove people have a motive for discrimination. Opportunity: Harassment may be a sign of broader issues with equity and power in the workplace, which your company should address. Does your company hire, promote, and pay employees equally? Examine your internal employment statistics to see if disparities in opportunities exist at your company. If they do, task forces and committees tend to be the most effective way to pinpoint the problem and mobilize resources to fix it, research suggests. Hiring employees specifically dedicated to working on diversity initiatives has also been proven to reduce disparities over time, and regularly reviewing diversity statistics will help identify any discriminatory fallout from fears of harassment claims. Risk: Your privacy policies don’t reflect current realities. When targets of harassment speak out publicly, employers often stay mum. Fears of privacy-related lawsuits from the accused may prevent an employer from revealing the results of an investigation and the organization’s disciplinary response. But public silence may be interpreted as employer inaction or indifference. Employees’ legal rights to privacy in the workplace are not fixed. Their scope depends to a large extent on employees’ expectations, which are created by the employer’s promises and behavior. If you let employees put their own locks on office cabinets, they’re more likely to have a right to privacy in those cabinets. Likewise, if the employer’s practices and policies all assume that HR will never divulge a finding of misconduct, the employer is more vulnerable to privacy-related claims from bad actors. Opportunity: Just as employers routinely warn that company email is not private, they should also warn employees that they don’t have a right to privacy when it comes to documented misconduct or the disciplinary actions that follow it. Ultimately, such a stance signals mutual accountability: You’ll provide a fair process, but employees can expect real consequences for unethical actions. Risk: Your prevention practices don’t work. There’s surprisingly little evidence that harassment training programs are effective. As social scientist Vicki Magley observed, most studies of training effectiveness involve only simulated programs created by researchers, rather than programs used in actual employment settings. Moreover, while there’s evidence that training programs successfully transmit information, there’s little proof that they favorably alter attitudes or behavior. When the Equal Employment Opportunity Commission reviewed the empirical literature on harassment training in 2016, it declined to take a position on “whether training…is or is not an effective tool in preventing harassment.” One problem may be the datedness of programs’ content. I recently completed a research project that involved reviewing materials from 74 such programs. Most of them were recent, but I also reviewed materials from the 1980s and 1990s for a historical baseline. The experience was akin to watching a series of bad software updates, in which developers add a new patch here and there without ever revisiting the underlying architecture. Even current materials draw heavily from older content and conform to a stylized genre that appears to date back to the mid-1990s. Opportunity: Employers can update training materials, develop internal programs tailored to the workplace’s culture and needs, and have them delivered by leaders who are respected within the company. They can also demand more-innovative and engaging content from outside trainers. And if companies really want to get serious about improving programs, they should measure their effectiveness and then share the findings. Risk: Your harassment policies provide little meaningful guidance. When law professor Vicki Schultz reviewed employer harassment policies in 2003, she found that they took an everything-but-the-kitchen-sink approach. Boilerplate policies prohibited a wide swath of sexual conduct, drawing heavily on government regulations issued in 1980 — six years before the Supreme Court defined harassment as a form of discrimination. Like harassment training content, harassment policies frequently end up being the product of new layers piled onto old, outdated materials. It may seem safest to just ban everything, but such draconian policies have hidden costs. If the policy includes a long list of prohibited conduct, but the company takes no action with minor violations, that’s a problem. The complaining employee feels betrayed, the offending employee may be emboldened, and no one knows where the company actually draws the line. Over time, uncertainty about the real — unwritten — rules will weaken the policy, the grievance process, and the company culture. Policies also fail to shape employee behavior when they’re presented in impenetrable legalese. A good policy will not only communicate expectations around behavior in plain language but also explain why the policy matters. Opportunity: Harassment law is actually quite narrow — conduct must be severe or frequent to constitute harassment, and it must be because of or based on the victim’s gender, national origin, or other personal characteristics. That means companies have more flexibility than they realize to craft a harassment policy tailored to their practices, values, and culture. A good place to start is to review the company’s track record on harassment. With offenses warranting intervention, how did the company explain to the employee that the behavior was wrong and its effect on the workplace? Assuming past practices are consistent with the company’s values and aspirations — and meet the minimal legal definitions — the results of the review can guide the effort to craft a new, more-tailored policy. Prohibitions on unacceptable conduct should be covered alongside reminders of the importance of inclusion in informal opportunities for advancement. When Opportunity Outweighs Risk Harassment policies need to change, yes, but the recent flood of revelations should signal to us that our focus has to be broader. The opportunity in this moment is to fix common bad workplace behavior and provide real, meaningful opportunities for everyone. Beyond the larger benefits of a workplace where everyone can thrive, longstanding commitments to equity can pay off in a crisis. Last August, Google (full disclosure: I represented Google when I worked at a law firm several years ago) found itself in the middle of a public controversy involving engineer James Damore, who circulated a memo attributing the underrepresentation of women in tech partly to biological differences. Google fired Damore, and its CEO issued a public statement explaining why the engineer’s position was contrary to the company’s fundamental values. But unlike Uber’s harassment scandal or the more-recent scandals involving Harvey Weinstein and others, the Damore dustup did not trigger a meltdown of the company’s image. That’s because Google had already been working hard to address questions of equity and done so in a transparent, data-driven way consistent with its culture. The crisis actually gave Google an opportunity to tell its employees — and the public — the larger story about its values. May we all be so unlucky. The Big Idea

Adapting to the New Risk Landscape

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