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How to Really Stop Sexual Harassment

May 22, 2018
A straightforward and realistic approach for employers to eradicate the problem.

Even before the Harvey Weinstein mess hit the headlines we were warning that you needed to institute a sexual harassment training program and teaching you how to conduct an investigation when a complaint was filed.

Later, after Weinstein and the birth of the #MeToo movement, we relied on expert advice to warn you that training was more important than ever because once a complaint is filed, it‘s generally too late.

Now we learn that employee training, although still important, all too often turns out to be ineffective. Earlier this year, the Society for Human Resource Management (SHRM) revealed that 94% of HR professionals surveyed said that while their employers have policies on sexual harassment, 22% of nonmanagement employees weren’t even aware that these policies existed.

Evren Esen, SHRM’s director of workforce analytics, explains, “The research findings suggest that, in some cases, policies are discussed as part of new-hire orientation and then shared only during training, which occurs once a year or once every two years.”

In addition, 11% of nonmanagement employees said they had experienced some form of sexual harassment in the previous 12 months. Of those, 76% said they did not report it for fear of retaliation or because of a belief that nothing would change.

In too many cases, employees treat the training sessions as a joke, or forget what they learn because they don’t believe the training has anything to do with how they see themselves behaving. Also, many of the main harassers turn out to be powerful executives who think that because of their elevated positions these rules simply don’t apply to them.

This latter reason is why more companies are charging their boards of directors with the responsibility for stemming this behavior. Just writing a check after an incident has occurred doesn’t help anymore since laws have been changed to make confidentiality clauses in settlement agreements almost impossible to enforce (and in some states now illegal).

If training programs have often proven to be ineffective, then why have so many companies over the years chosen to institute them, even in rudimentary form? A big motivating factor is that the U.S. Supreme Court has twice held that the very existence of a workplace sexual harassment training program is essential to an employer’s ability to defend itself against these lawsuits.

Proposing a Simple Solution

If training is necessary but is often ineffective, what are employers to do? One necessary action is making sure that you are pursuing the right kind of training in the right way.

Another essential step is to simply take a strong stand against sexual harassment and then follow through on it with effective action.

SHRM president Johnny C. Taylor, Jr. observes, “To sustain a harassment-free culture, policies need to be continually reinforced by leaders and managers and be part of everyday discussions. If it’s not part of your culture to be talking about this, then it is going to be harder to curb inappropriate behaviors.”

He adds, “Unspoken cultural norms can allow inappropriate behavior. Sometimes the harasser might not realize that what is being said is inappropriate. This is why a culture of respect and training are important.”

Amy Epstein Gluck, an attorney with the law firm of FisherBroyles LLP, discusses an approach that works. While she concedes that current research on the training's effectiveness is discouraging, she advises employers to continue deploying interactive sexual harassment training tailored to the workplace.

She writes that the solution is for upper management to convey simple and clear messages to all employees. Epstein Gluck quotes here the reported remarks of one legal scholar who said, "I've seen leaders of companies go in front of their employees and say: 'Listen, we're here to work, not to cater to your social and sexual needs. If I hear you're doing that, you're out of here.' It's pretty strong, but harassment doesn't happen in those places."

As Epstein Gluck and her law partner Rich Cohen wrote earlier in an Above the Law article, male employees should be mindful that "the primary reason that women are at your workplace as coworkers is so they can make a living and build a career."

Organization leaders who are willing to not only state but enforce these policies have better chances of shutting down sexual harassment, Epstein Gluck says.

When refusal to tolerate unlawful harassment comes from the very top of your organization, it demonstrates that the commitment to maintaining a culture of respect for all is expected of all employees, from the C-suite to the mailroom. “It says, ‘we’re serious here,’” Epstein Gluck points out.

Employers also need to encourage employees to report any unlawful harassment by men or women, and support a “say something if you see something” policy. She also says employers need to clarify for their workforce that if an employee reports sexual harassment or discrimination, they will not suffer any kind of retaliation.

Employers, take note: Pursuing these actions along with other approaches definitely will help to alleviate this threat to your business and enlist the nonharassers in your workforce in the cause, she asserts.

“About half of women and men say their companies have responded to the #MeToo movement by taking action against harassers, updating and clarifying their policies, or offering employee guidance or training,” Epstein Gluck notes. The question is, she asks, “Are you going to be one of them and be part of the solution?”

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