How Companies Can Build Better Sexual Harassment Policies

September 7, 2018, 11:00 AM UTC

It’s been a year since the #MeToo movement began, laying bare the systemic sexual harassment roiling under the surface of corporate America. Since then, women in virtually every industry have come forward with their own stories and allegations.

Now that the scale of the issue is clear (or clearer), companies are reckoning with how to fix woefully inadequate sexual harassment policies. The way forward isn’t always obvious. Burning old structures and standards to the ground is difficult; creating new ones that address the problem is even harder.

At many companies, real change starts by redefining human resources’ role within the organization, says Rick Rossein, a law professor specializing in employment discrimination at City University of New York who has helped a number of Fortune 500 companies develop policies around sexual harassment. The department has often been viewed as an afterthought, focused on checking legal boxes and administering benefits, while allowing sexual harassment allegations to fester unreported or undealt with.

That’s a mistake, not just from a legal or moral perspective but from a financial one. “When harassment is going on, people are talking about it,” Rossein says, which means “they are not doing their jobs the way they should be doing them.”

To course correct, the first step is to invest in human resources and empower the department to focus on addressing larger cultural problems.

But the onus doesn’t just rest with HR. There are other strategies companies can take to properly address sexual harassment allegations, as well as create an environment where such incidents are less likely to happen in the first place. They include:

1. Make it easier for managers to report sexual claims by creating channels outside of HR.

Middle managers are regularly on the front lines when it comes to handling reports of sexual misconduct, says Paula Brantner, senior adviser at the nonprofit Workplace Fairness. This can be a tricky position to be in. While they have some power, typically it’s not enough to meaningfully change the culture or eradicate the problem. Most managers know they can report sexual harassment allegations to HR, but if an employee is reluctant to file an official claim with the department, their options are limited. As a result, allegations often stop at middle management.

It’s the company’s responsibility to make it clear what is expected of managers in situations like this, says Rossein. “I advise employers to put in a separate provision in their corporate policies that say, you have a duty to report a claim if you hear anything.” For employers, this is a protective measure. If a manager knows about an allegation but doesn’t report it, the company could still be liable for punitive damages because the manager is considered an agent of the corporation.

More importantly, “someone who is harrassing one women will often do it to someone else in the future,” says Rossein. Middle managers have a responsibility to make sure the issue doesn’t just fade away.

Simply making it clear that managers should report all claims to HR is not always enough, particularly if employees are distrustful of the department. Brantner recommends designating a few trusted, high-ranking individuals in the company to become well-versed in the company’s sexual harassment policies and who can be approached should an allegation occur.

Having an avenue outside HR “is more likely to be effective compared to when there is only one reporting mechanism, and it’s a formal complaint,” she says, particularly because not every troubling encounter ends in a formal complaint. “Sometimes it can be just as simple as, ‘I wasn’t happy that this happened, and I don’t want it to happen again.’” In such cases, having someone outside of HR to speak with “gives employees an opportunity to assess their options.”

2. Put no retaliation policies down in writing.

When an employee comes forward with an allegation of sexual harassment, the law prohibits his or her employer from workplace retaliation. But as the flood of #MeToo stories has made clear, this hasn’t stopped employers from doing exactly that. After a report is filed, it’s often the victim who suffers professionally. “You have to build a climate of trust so women will come forward in order to start addressing the problem,” Rossein says.

In order to ensure that those who come forward have some level of protection, Rossein advises that employers “adopt a written non retaliation plan,” which is given to the accuser, accused, their managers, and a high-level person at the company. Such plans list specific actions that would be considered retaliatory, such as barring the employee from meetings, removing him or her from accounts, or telling coworkers about the situation. They also include detailed consequences should these actions occur.

3. Invest in better training, particularly bystander training

A number of state and local laws require companies to provide workers with sexual harassment training. While a good idea in theory, in practice, training sessions often consist of an hour-long video or lecture that exists to check off legal boxes. While cost effective, there’s scant research they incite change. More problematically, there’s some evidence they can backfire.

For her dissertation, Shannon Rawski, now an assistant business professor at the University of Wisconsin at Oshkosh, asked employees to respond to a questionnaire after completing an in-person sexual harassment training session. One question asked participants whether the training made them feel valued or devalued. Those who chose the latter were also more likely to agree that, following the training, they were more likely to tell sexual jokes. Her hypothesis is that by portraying sexual harassment as a black and white issue that doesn’t account for exchanges among friends, misunderstandings, and non-malicious gaffes, training can breed resentment. The focus on the legality of the issue divides the workforce into harassers or victims, roles many people refuse to identify with.

While in-person training sessions are generally viewed as a better option than training videos, Rawski believes her research underscores that “it all depends on the content of the training and the quality of the trainer.” She’s seen great in-person sessions, and terrible ones, such as a sexual harassment lecture in which an attorney asked the gathered employees to raise their hands if they had read the employment handbook. When only a few hands went up, she launched into a diatribe about how everyone assembled before her was part of the problem. “You can imagine how that made people in the crowd feel,” Rawski says. “You are basically calling them morally bankrupt because they didn’t read a passage in the handbook. It makes people want to reject the training.”

Instead, she believes more companies should focus on strategies employees can use to become part of the solution. Known as bystander intervention, this form of training recognizes that the workforce is more than a collection of harassers and victims, and teaches employees how to respond when they see inappropriate behavior, including conflict management techniques, such as de-escalating and redirection techniques.

This runs counter to traditional sexual harassment training, which often centers on presenting workers with “a long list of behaviors that are forbidden,” Brantner says, without teaching employees how to respond. “So people tend to freeze,” she says, or even respond with nervous laughter, “which can be misinterpreted as positive encouragement.”

4. Recognize that there are many grey areas.

Curbing sexual harassment requires creating an environment where bothersome and unprofessional behavior is not acceptable, but where such displays are not conflated with sexual harassment, Rawski says. Particularly for more minor offenses, immediately turning to the labels can do more harm than good. “If you call someone a harasser, that’s going to be very triggering,” she says. It can close the door on a productive conversation; the threat of legal action typically leads to defensiveness and denial.

That’s why workplace sexual harassment training must extend beyond clear violations, or the message becomes “you can walk right up to that line, and as long as you don’t cross it, it’s fine,” Brantner says. Instead, the focus needs to expand to include concrete details on the “the kind of climate and culture that we want to have in the workplace.”

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