As I write this column, Russell Simmons is the latest executive to resign amid sexual harassment allegations. Congressman John Conyers is on the bubble and perhaps Senator Al Franken. Charlie Rose and Matt Lauer are history. And Garrison Keillor is, well, woebegone. What started with Harvey Weinstein won’t end with Harvey Weinstein. But this column is not about these individual cases. No, it’s about reaching an inflection point in how we manage sexual harassment issues and five suggestions on morphing pain into progress.
Idea No. 1: To whom much is given, much is expected.
Here’s Jesus: “From everyone to whom much has been given, much will be required, and from the one to whom much has been entrusted, even more will be demanded.” (Luke 12:48) It is imperative that a boss, whether the CEO or a floor supervisor, embrace the idea that they are role models for employees. (As a law professor, I am acutely aware of this role vis-à-vis students.) Poor treatment of women, whether harassing conduct or simply disrespectful conduct sends a message, “I do it, so you feel free as well.” Employees’ closely observe the boss’ conduct. Not by a little, but by a lot. It is a privilege to be a boss. Act like it.
Idea No. 2: Toss existing policies, rewrite them from scratch.
Do not get entangled in a policy that is overly legal or that tries to mirror language from some case. Set out the anti-harassment policy in simple and clear language. And here’s a radical idea: Explain “why” you have the policy and, no, the answer isn’t that the law requires it. Try this: “We have the policy because those who are harassed can’t rise to their full potential as employees or as human beings. That’s not good for them, for you or for the company as a whole.” And think about a Professionalism Policy: “We hired you because we believed you to be a professional and that you would do so with our customers/clients as well as your colleagues.” Tack on possible examples and consequences. This policy speaks to the angels of an employee’s better nature, and provides a catch all if the conduct at issue does not rise to a legal violation.
Idea No. 3: Change the culture.
Culture is a word that gets tossed round so often and so loosely that it is now devoid of meaning. A client though once defined it as an engrained mindset that sets you on automatic pilot when confronted with a situation. The classic example is the response of Johnson & Johnson to the Tylenol crisis. The company never considered not recalling the product. Cultures are hard to change. But as with Idea No. 1, the cultural change starts at the top. When Charlie Strong became head Coach of the Longhorns, he set out several basic mindsets. Here was one: “Women will be respected.” And he enforced the mindset when he refused to take back two players who were criminally accused of sexually assaulting women but who escaped criminal punishment. Why? Sort of like the professionalism policy—in dealing with sexual harassment the issue is not a burden of proof, the issue is whether facts exist that demonstrate lack of respect or lack of professionalism. Here is another mindset: create a culture in which it is not just accepted practice, but expected practice to go to a fellow employee and say “you should think about changing your conduct.” It does not need to be confrontational. To borrow a phrase from Shakespeare, let me “tell you, friendly to your ear.”
Idea No. 4: Proportionate responses rule.
Like in the military, take a general command and fit it to the circumstances. That’s why I have zero tolerance for zero tolerance policies. These policies make for lazy decision makers, unjust decisions, and overall low morale. “Though justice be thy plea, consider this, That, in the course of justice, none of us Should see salvation: we do pray for mercy; And that same prayer doth teach us all to render The deeds of mercy.” (Judge Portia to Shylock on demanding his pound of flesh in Shakespeare’s The Merchant of Venice.)
Idea No. 5: Don’t do something just because you can.
That’s what former President Clinton remarked about his sexual misdeeds reasoning that “(is) just about the most morally indefensible reason that anybody could have for doing anything.” Jesus understood the flip side. In What The Gospels Meant, Garry Wills remarks that The Beatitudes were mistranslated and the stuff about the meek should actually be “Happy those who yield since they shall acquire the earth.” Here is Willis: “Jesus praises those who could be aggressive but who refuse to be. The full force of the paradox comes from the reward of yielding, since acquisition of the world is normally the prize of conquest.” Words to live by.
Michael P. Maslanka is an assistant professor of law at UNT Dallas College of Law. Maslanka can be reached at email@example.com.