Weinstein. Lauer. Franken. Conyers. Now Mario Batali. Who’s next? As news of sexual harassment scandals break, employers are taking a closer look at their own procedures and policies and want to know how to be more effective in eliminating this behavior and remedying the injustice.
In fact, the EEOC notes that only one in four workplace harassment victims report their abuse to HR. As result, problems continue to fester, grow and multiply. Because the victim is usually targeted by someone in a position of power, the individual is often uncomfortable or unwilling to raise it with HR for fear of retaliation.
According to David McFarlane, a partner with the law firm Crowell & Moring, there may be a new way for employers to supplement current HR efforts. McFarlane sat down with Inside Counsel to discuss another way to combat harassment and discrimination in the workplace. He recommends that companies create an independent third-party advocate that would be available to employees, at no cost to them, under a stand-alone employee benefits plan under ERISA that would also provide funds for certain health and welfare benefits.
So, why are employers taking a closer look at their own procedures and policies? Per McFarlane, the simplest answer is self-interest. Even if you completely discount the better angels of HR personnel as well as those who are in positions of power as managers, officers, executives and board members, the fact of the matter is that workplace harassment hurts the bottom line.
“There are good people at all levels of most companies who are deeply offended by the bullying and predatory nature of those who harass others and [who] want to remedy this workplace and societal ill,” he said. “The very recent and prolific public scandals have served as a sharp reminder to all that no matter how well-intentioned, focused and structured a company may be, workplace harassment persists.”
Good employers have always had the better interests of their employees at heart to better attract, retain, reward and support their workforce. Providing a plan to better prevent and remedy workplace harassment is an idea long overdue, according to McFarlane. To be most effective in eliminating workplace harassment, and remedying its harms, the first step is for employers to be honest with themselves about its existence. Harassment and bullying take many different forms–sexual, gender, race, nation origin, sexual orientation, disability, etc. So, providing harassment training and designing anti-harassment policies will help define the problem and ensure everyone understands what the rules are.
“But to root out the problem, employers need to supplement these largely passive measures with more active ones that help to encourage reporting–because if you don’t know it is happening, you can’t fix the problem and remedy the injury,” he explained. “Reviewing and analyzing your overall structure and policies regarding workplace harassment, hiring external investigators when there is a problem, setting up new plans and policies to specifically address reporting and help remedy harm, are all ways of better addressing this problem.”
The best way for companies to supplement their efforts is to foster early reporting and detection of the problem, followed by investigation and decisive action. Most HR departments want to get this right as they want to act as a confidential resource for employees to seek help, but they are hobbled by the fact that sexual and other forms of harassment are so under-reported that they are often not made aware of a problem until it is too late. The damage has been done, and the harasser has either created a work environment that is toxic beyond repair or otherwise harmed victims physically, psychologically or both.
Why is sexual harassment so underreported?
“The main reason is fear,” he said. “Fear of not being believed. Fear of being ignored. Fear of retaliation. Fear of the harassment getting worse. Fear of losing a job. Fear of not being promoted or demoted. Fear of ‘rocking the boat’ and making things harder for coworkers. Fear of being ostracized by peers for stepping forward.”
One common thread that seems to run through the high-profile reports of sexual harassment: The harasser has power; the victim does not, per McFarlane. This differential is what the harasser counts on to be able to get away with it. It’s often difficult for the victim to imagine being able to overcome this power differential. Harassed employees must overcome their fear that by reporting the harassment they are going to have to fight against the power of the company.
Today, there tend to be two kinds of harassers: those who simply don’t understand the parameters of appropriate workplace engagement and those who are just bad people. The first category consists of people who just do not understand the effect that their behavior is having on those around them. The second category are those who understand that their behavior is unacceptable in society in general and in the workplace. But, there isn’t much that can be done by an employer with respect to those that fall into the second category besides weed them out by identifying them and taking decisive action to ensure they are not allowed to continue their behavior.
“We hear the very public horror stories, but I think most harassment falls under the first category,” McFarlane explained. “If these individuals and their behaviors are identified early–before they have created a toxic work environment and caused considerable individual harm–they can often benefit from additional training and counseling. The key to rehabilitation is investigation, early intervention, training, counseling, and follow-up.”
So what is the solution? According to McFarlane, disrupt the disrupter with a multifaceted approach–report, investigate, intervene and remedy. When faced with allegations of harassment, employers simply must act. They must investigate, act on their findings, and they must help those who have been victimized be made whole. Employers must find ways to encourage early reporting and provide real remedies to affected employees. This means a new way of approaching workplace harassment. Unfortunately, the perception of most employees seems to be that if they report harassment, they will be faced with an HR or employer reaction that wants to either ignore or cover up the problem. This perception persists even though many companies have policies that include an anonymous reporting mechanism because employees believe that the HR department is first, a tool of the employer.
McFarlane and his team have created the Workplace Harassment Prevention and Protection Plan (WHiPP Plan) as a first-in-the-nation, employer funded plan that is subject to the protections of ERISA and is designed to help better address and remedy workplace harassment by promoting its early detection as well as provide certain financial resources to help a harassed employee recover better and faster from the effects of such harassment by putting them in charge of their own plan of healing. This plan is built around an employer’s needs and can be designed to work in tandem with HR departments and independent third-party administrators to help facilitate reporting, investigation and provide remedies.
Unfortunately, today sexual and other forms of workplace harassment are a problem that is unlikely to go away quickly. The daily reports of new harassment allegations reveal a system that never really worked as well as intended, so new ways of looking at and addressing the problem are critical.
Amanda G. Ciccatelli is a Freelance Journalist for Corporate Counsel and InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more.