By Ellen McGirt
May 16, 2019

Two women who, among many other extraordinary achievements, have helped assist more than 4,000 survivors of workplace sexual harassment since 2018, are now coming to an office near you.

Civil rights attorneys and co-founders of the TIME’S UP Legal Defense Fund Roberta Kaplan and Tina Tchen have teamed up again to co-found HABIT, a new anti-sexual harassment advisory that they hope will be a welcome addition into a crowded field.

“We’ve heard over and over from a number of companies that the options available were unsatisfactory and that – particularly in this environment – they need a different kind of help,” says Kaplan. It’s bigger than legal compliance, and more powerful than one-off bias mitigation, says Tchen. “What we’re really addressing here is culture.”

RaceAhead caught up with Tchen and Kaplan by phone last night, to mark the launch of their new venture and to get their broader view on gender, equity, and sexual harassment in the modern era.

They were at times ebullient and contemplative. And they’re very busy.

Tchen has long operated in the dual worlds of law and governance – in addition to her lengthy legal career, she was an assistant to President Obama, Chief of Staff to First Lady Michelle Obama, and Executive Director of the White House Council on Women and Girls. Kaplan, who’s represented everyone from Airbnb to the Minnesota Vikings, is probably best known for her landmark Supreme Court case, the United States v. Windsor, which ruled that a key provision of the Defense of Marriage Act (DOMA) violated the U.S. Constitution on behalf of legally married same-sex couples.

But the two first teamed up to create the TIME’S UP Legal Defense Fund in the wake of the Harvey Weinstein sexual harassment scandal.

“It was pretty clear that there wasn’t enough available and willing legal support to represent women who either had claims or to defend them against claims, relating to issues of sexual assault or harassment at work,” says Kaplan. The Fund, which recruits expert volunteers and has helped raise more than $24 million to defray legal costs, was a way to “re-incentivize the market to get these women (and men) represented.”

They say that HABIT, which stands for Harassment, Acceptance, Bias, and Inclusion Training, is a tailored set of offerings aiming to fill a niche in the marketplace. “I certainly think there’s been a lot of surprise about the strength and power of TIME’S UP and Me Too,” says Kaplan.

Indeed.

I asked them about male “backlash,” the largely anecdotal phenomenon of executive men refusing to mentor women for fear of making a mistake or being accused. While men have been successfully mentoring women for decades says Kaplan, the simple rule of “don’t do to others what you don’t want done to yourself…or your daughter,” may not be sufficient in such interesting times.

Tchen says these new questions are gateways to better corporate culture. “I actually get asked all the time, ‘How do I say hello? How do I give a compliment?’ And even more important, ‘How do I give criticism?’” she says. It’s also essential that men get the coaching they need so they can become comfortable giving developmental feedback. “Woman and people of color can’t grow in their careers without real guidance.”

And what about the companies that have been tolerating powerful predators in their midst? How can those cultures change?

Tchen says that legal loopholes have made it difficult for bystanders to speak up, even if they knew what to say. “There are no protections under federal employment law to protect bystanders to harassment,” she says. In fact, many liability or anti-harassment trainings correctly note that there’s nothing in it for you to support someone who is being targeted. “I’ve heard it taught that ‘it would be nice if you spoke up, but you are not required to,’” she says.

That needs to change, she says. “Even though the law doesn’t protect bystanders, you [the employer] can choose to.” And, you can teach them how to safely weigh in or intervene. But you have to tackle the big stuff. “Whatever allowed a repeat offender to stay in their jobs for so long means that there was something wrong with the system,” she says.

Finally, I asked what lessons can be learned from the high-profile offenders, the Charlie Roses, the Matt Lauers, and other men who have been fired from their jobs and banished from public life. People do seem to worry that these punishments will always be permanent. What would a “Sexual Predator Re-entry Program” look like? Is there a gray area?

Kaplan turns philosophical. “You’re really talking about redemption,” she says, citing the work of author and Rabbi Danya Ruttenberg as inspiration. “Now, she talks about contrition and really doing the work of addressing what you did and how it was wrong,” she says. “You have to legitimately show and do something beyond just talk.”

Both say that this is the essence of the work.

To be better allies, men need to listen to what women say about their lives at work. And then, show up. “It’s important that men learn to be less afraid of making a mistake and find ways to be part of the change process,” says Tchen. Then, the power “habit” we all need to practice is acceptance. “The rest of us need to accept that others are still finding the words and will be engaged with a different level of understanding,” she says. “We need to make room.”

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