How #METOO and the ‘Weinstein Effect’ is changing the Workplace

(7-9 minute read)

The October 2017 news article detailing accusations of sexual assault and harassment against movie mogul Harvey Weinstein boosted the #MeToo movement into the nation’s awareness. What’s different in the workplace today?

The New Yorker expose on movie mogul Harvey Weinstein’s behavior unleashed a media earthquake when several Hollywood actresses accused him publicly of sexual harassment and sexual assault. The rumblings included news of payoffs made over two decades to silence his accusers.

There was a seismic shift as more individuals offered similar tales, their accusations sending powerful people, mostly men, tumbling in disgrace from high-profile jobs. Marches such as Take Back the Workplace and social media movements like #MeToo gave voice to victims of sexual harassment, sexual abuse and predatory behavior. The news became workplace water cooler fodder.

Even Supreme Court justice Ruth Bader Ginsburg disclosed her own experience of sexual harassment as a law student.

64% of Americans said sexual harassment in the workplace is a serious problem, and nearly two-thirds said men who engage in this behavior usually get away with it, according to a Washington Post survey. HR came under fire for seeming to look the other way or ineptly handling the issue at their organizations.

Has There Been a Sea Change?

So what—if anything—has changed since last year?

Nearly one-third of 1,034 executives said they have changed their behaviors to a moderate, great or very great extent to avoid behavior that could be perceived as sexual harassment, according to new research the Society for Human Resource Management (SHRM) published in October 2018. About one-fourth of 1,022 managers said they have changed their behaviors.  They are seeing the damage sexual harassment can create throughout an organization. Twenty-three percent attributed lowered morale and decreased engagement to sexual harassment, 18 percent said it affected productivity and 15 percent believed it created a hostile work environment. SHRM’s findings are from data collected in January. Having a third of executives report to have changed their behavior is startling.

There also can be legal repercussions. The number of sex discrimination claims and sexual harassment complaints filed with the Equal Employment Opportunity Commission (EEOC) has risen. Among filings in fiscal year 2018, 41 included sexual harassment claims. In fiscal year 2017, sexual harassment claims accounted for 33 filings.

“Given the EEOC’s limited resources and the broad range of legal claims and protected categories for which the agency is responsible, a jump of 25 percent in any one legal claim is, in most employers’ view, remarkable,” said Christopher DeGroff. He is an attorney at labor and employment law firm Seyfarth Shaw in Chicago.

“The dramatic increase in filings should be an eye-opener for employers,” he blogged. “The EEOC is increasing its enforcement activity with a particular focus on sex discrimination and sexual harassment. The EEOC still strongly advises employers should update, and aggressively enforce, their EEO policies. Now, more than ever, employers need to be on top of their game to avoid becoming the next target of EEOC-initiated litigation.”

Locally, the same trends apply. “We have seen sexual harassment claims rise tremendously in the last year across the clients and employees we serve. We used to have a few of these type of claims a year, and now they are a regular occurrence.” Blythe Kazmierczak, EVP of HR Solutions.

So What Should You Do?

Every organization is vulnerable where sexual harassment in the workplace is concerned.  Federal, as well as state and local laws prohibit workplace harassment. If your employee headcount is at least 15 employees you meet the threshold for anti-discrimination laws like Title VII of the Civil Rights Act.  Even if you have less than 15 employees, it doesn’t mean that you and your business can’t be sued. And beyond the liability, these type of issues create a cultural issue for at least 50% of the working population. Talent is scarce, turning off 50% of potential workers is just not smart.

It is still a best practice for every organization to have an effective anti-harassment policy in place. An demonstrated commitment to an organization free from harassment or discrimination is the first step toward eliminating workplace harassment.

How is Your Handbook? Review Your Anti-Harassment Policy

• To be effective, your anti-harassment policy should expressly state your zero-tolerance stance toward harassment. Consider whether your policy will extend to non-employees such as third parties, clients, vendors, or contractors. Some state or local anti-harassment rules may even extend to such individuals
• The policy should provide clear examples of both physical and nonphysical prohibited conduct. Prohibited physical conduct could be quid-pro-quo threats along the lines of, “If you don’t let me X, I’ll sabotage your work.” Nonphysical harassment creates a hostile work environment, for example telling crude sexual jokes to an unwilling listener or sending an offensive email or text message.
• In your policy, clearly state that protections extend to not only sex-based harassment but to any other federal, state or locally recognized characteristic, including race, color, national origin, religion, disability and age. Also include a statement making it clear that if the policy is not followed, action up to and including termination may occur. Organizations should emphasize that all complaints will be treated seriously and receive a prompt response and appropriate remedial action.
• Lastly, state that no one who raises a complaint or participates in investigations will experience retaliation. Your policy’s effectiveness will be severely limited if employees are afraid of using it.

Do you Have a Procedure that Allows Issues to be Surface?

Your sexual harassment complaint procedure, which should be included in the policy, starts with a complaint by either a victim of or a witness to harassment. Your complaint, investigation and resolution procedure should allow employees to immediately report complaints and provide multiple avenues to raise the complaint.

The procedure should:

• Denote who receives complaints — some example human resources, supervisors, the C-suite or board members
• Designate who conducts investigations, whether a well-trained internal investigator (traditionally HR conducts) or an independent outside investigator (especially when the accused is high-level), as long as they’re unbiased and unconnected with either party
• Determine exactly what happened
• Document every step from complaint to investigation to interviews and determination in a fact-centric way

The investigator should have clear guidelines on how to assess the credibility of the complainant, alleged harasser and any witnesses. Once the investigator makes their recommendations, take any appropriate corrective action and advise the complainant that appropriate action was taken. Continue to follow up with the complainant to ensure that no further harassment has occurred.

A procedure that has employees directed to an outside HR firm as the contact point means employers are more likely to hear about the issue, because employee are more likely to believe their claims will be handled correctly and in a way that won’t lead to retaliation. Often, we see employers with festering issues because their procedures were directing employees to the same supervisors with whom they had grievances or HR contacts that were not trained to conduct an effective employee relations investigations.

Employee Acknowledgement & Manager Training

Once your policy and procedure are written, implement them with strong communication and training. Ensure that leaders are trained not only on policy and procedure but also on how to prevent, identify and handle complaints. Have every employee sign off on the policy, indicating that they’ve read and understood it, and make that acknowledgment part of the employee file. This is where an outside HR group can be helpful with off-the-shelf training and online handbook and policy acknowledgment software, streamlining and speeding up the implementation.

Call us at Axios HR and we can review your policy, help you improve or implement your procedures.