On April 28, 2018, the New York Times published an investigative piece about a company where women alleged they were demeaned, excluded from upper management, and regularly exposed to crude and offensive talk and behavior. The stories, which spanned decades, included a boss who tried to forcibly kiss a female subordinate, references to an employee’s breasts in company emails, a manager calling an employee a “stupid bitch,” and a supervisor bragging about keeping condoms in his backpack, presumably “just in case.” You would assume this company did not have any policies, training, or reporting guidelines that would have prevented such incidents. You would be wrong.
The company was Nike, Inc.
Of course, Nike did have training, policies, and reporting procedures, all of which failed—or at the very least came up well short of their intended goal. “Traditional” sexual harassment training and policies do not work. This is confirmed again and again by the steady drumbeat of allegations against fallen celebrities and company executives, and reports from survivors of assault and harassment. We must engage in a higher-level national discussion about sexual harassment in the workplace. We must correct this stubbornly persistent issue that never left, but also never felt so visible.
Companies that think this movement cannot reach them should think again. Even the best-run businesses retain the echoes of outdated and ineffective sexual harassment prevention strategies, putting well-intentioned businesses at risk of significant exposure. Companies that believe they are protected from liability because they have a policy forbidding sexual harassment and conduct occasional training should remember that Nike also had a policy forbidding sexual harassment and conducted training.
Train Your Leaders
Recent studies and academic reports support what many of us already knew: lecturing people not to harass, and policies without action will not change hearts and minds. The most effective path to creating a welcoming and healthy work environment is to have a well-informed executive and management team that leads by example. This training should be longer than the usual 30-minute “check-the-box” agenda item at the yearly retreat. Training and discussions should be led by an attorney who specializes in this area of law and should include real-life examples as well as opportunities for the team to work together and talk through potential responses. Executives and supervisors should be instructed that they must do more than simply “not harass” employees—they must be effective leaders. They must be aware of even potentially minor issues and know how to properly investigate and deal with them. They must encourage positive “bystander” intervention, where awkward or odd comments that may not have been overtly sexual are followed up on to confirm lines were not crossed.
Encourage Reporting
Don’t assume that because people don’t report harassment, that you don’t have an issue. On the contrary, if people do not feel comfortable reporting concerns, that is a problem. Throw out “zero tolerance” policies that may prevent employees from reporting anything for fear that every transgression will result in immediate termination, instead of more appropriate corrective counseling. Simply put: we cannot just “fire” our way out of this problem. Employees who feel that their workplace will listen to their report and take some action are less likely to file claims and are more likely to report high workplace satisfaction, even when the report does not result in a finding in their favor.
Engage Employees
In addition to being a good example, employers should provide employees with clear guidelines about workplace culture and how to be an effective agent of change. Traditional presentations that simply instruct employees about the legal nuances of sexual harassment law are at best useless, and at worst, cause confusion about what the company expects. Nobody thinks of themselves as a harasser, and some of the employee conduct at issue may actually be well-intentioned, albeit misguided. Further, encourage employees to enhance their opportunity for advancement through “professional etiquette” training that motivates them to correct bad habits, like unwelcome hugging or vulgar language or jokes, without the unnecessary backlash of prematurely accusing them of harassment.
Beyond “Sexual” Harassment
We must escape the legal confines of “sexual harassment” and address company culture as a whole. Some of the bad reports at Nike actually had nothing to do with legal sexual harassment. For example, one of the complaints was that when the Nike Golf Department was eliminated last year, those employees were advised of their future employment status through a PowerPoint-type presentation that listed on big screens who would stay and who would go, which seemed insensitive and inappropriate to many. This was not sexual harassment but appeared in the same Times article alongside all the other complaints about sexual harassment. Indeed, many of the cases we defend involve a combination of claims. Some are relevant to a legally protected status, some are better classified as an employee venting general frustration for events they believe were handled unfairly. We must take all those issues seriously.
Here is the truth: nobody knows what constitutes legal sexual harassment except for the jury returning a verdict against a defendant after a long and expensive civil trial. We cannot let that be our baseline. Rather, we must approach harassment issues like we approach drinking and driving laws, and never aim for the legal minimum. No smart person drinks until their blood alcohol content is .07% and then tries to drive, because we have no idea what .07% is until we are pulled over by a police officer to take a breathalyzer test. Similarly, regardless of whether something is technically sexual harassment, no smart business should accept behavior that is offensive or inappropriate. We must raise our standards together.
Don’t Overreact
Most great movements have some backlash, and we can expect the same from the #MeToo movement. We can guard against this by sticking to our principals and not making knee-jerk decisions based on incomplete information. An HR executive for a large company recently told me about a particularly graphic and disturbing anonymous sexual harassment complaint she had received about one of her male employees. She presented the complaint to the CEO and he demanded that the employee be fired immediately. The HR executive disagreed and insisted the company follow its usual investigation procedure. At the conclusion of the investigation, they found the allegation was falsely made by another male employee with a grudge. Had the HR executive skipped the important step of a full and fair investigation, company morale would have been shattered and it would have eliminated any confidence that the company would competently handle future reports.
Companies that focus on proactive change will have an opportunity to evolve and thrive. Companies that don’t will risk experiencing their own “Nike moment” and may become the next news headline.
About the Author
Anthony Kuchulis is a partner at Barran Liebman LLP who focuses on representing employers and management in employment litigation. Contact him at akuchulis@barran.com.