When Anti-Harassment Policy Isn’t Enough, Fix Corporate Culture

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By Martin Berman-Gorvine

Policies and training to prevent sexual harassment risk irrelevance if they’re not backed up by the corporate culture, attorneys and consultants say.

Allegations against movie producer Harvey Weinstein, Sen. Al Franken (D-Minn.), Alabama Republican Senate candidate Roy Moore, Pixar’s John Lasseter, and beyond have turned an uncomfortable spotlight on employer policies that many say are ineffective or worse.

“A lot of them are just to cover yourself and say you’ve had the training,” Rex Conner, author and owner of workplace consultancy Mager Consortium, told Bloomberg Law.

Authenticity, Action Matter

“The current training and policies are ‘corporate speak’ and not authentic. When something is not authentic, people disengage and ignore,” Janine Yancey told Bloomberg Law in an email. Yancey is president of San Francisco-based online workplace compliance training company Emtrain.

So what’s the remedy? “What you need for any program to be effective is complete buy-in by management,” Mark E. Spund, a partner and head of the employment law practice at management-side law firm Davidoff Hutcher and Citron LLP in New York, told Bloomberg Law. That means all levels of management must be fully on board, from the C-suite down to line managers, he said.

Potential offenders also need to have a reason to fear real consequences, he said. “I tell clients, fire the first employee that you really have grounds to fire, and people will start taking it seriously,” he said.

Changing Enabling Culture, Training for All

No policy or training to stop sexual harassment can work if the corporate culture implicitly accepts such actions, especially if they come from “rainmakers” or personnel seen as vital. The opposite must be the case.

“Everyone’s thinking about it, so it’s a good time for companies to come out and say it’s a core value to us,” Mark A. Hanley, a partner and labor and employment attorney with the Tampa office of management-side law firm Bradley Arant Boult Cummings, told Bloomberg Law.

To change the culture, Yancey said, executives should train all employees in sexual harassment prevention, not just managers, “as many companies do.” Employers should also train everyone in “unconscious bias,” and suggest tools for employees to help solve problems before they get out of control.

Conduct Doesn’t Have to Be Illegal

Official policies can help if they’re drafted right but won’t work if they focus only on illegal actions, attorney Jonathan A. Segal told Bloomberg Law. Segal is a partner in management-side law firm Duane Morris LLP in Philadelphia.

Instead, he recommended that employers give specific examples of behavior that won’t be tolerated, even if such actions are not in and of themselves illegal, such as “inappropriate remarks on an employee’s appearance.” The moment a supervisor witnesses that kind of behavior, he or she should tell the offender it was inappropriate and will be addressed. At the same time, a supervisor should avoid giving the target of the inappropriate behavior the impression of “paternalistic rescuing,” Segal said.

Also vital is giving employees multiple options for reporting harassment, said Segal, who served on the Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace. Employees shouldn’t be required to turn to their immediate supervisor first, for example, because that person may have been the harasser. Consider having an outside entity provide a hotline that can pass on alleged incidents to be investigated, he said.

The company must forbid any retaliation against a complainant or witness, even if the complaint turns out to be unfounded upon investigation, Segal said.

Thank Complainants

Training should cover how managers should and shouldn’t respond to witnessing or receiving a complaint of sexual harassment, he said. It’s vital for the supervisor who gets a complaint not to express shock or disbelief, saying something along the lines of “That doesn’t sound like Joe,” he said. Instead the boss should thank the complainant for bringing the matter up and promise a full investigation, Segal said.

Conner said the potential for quid-pro-quo sexual harassment can be reduced by making job evaluations and promotions more objective, which reduces the potential for abusive subjectivity. “The more subjective you make it, the more the perpetrators are going to hide, and the less effective it’s going to be,” he said.

To contact the reporter on this story: Martin Berman-Gorvine in Washington at mbermangorvine@bloomberglaw.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Tony Harris at tharris@bloomberglaw.com

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