Sexual Harassment Culture Shift Traditional Training & Policies Have Failed Us

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On February 20, 2018, Sports Illustrated published a bombshell report on the interworking of the Dallas Mavericks’ back-office that included a story of the organization’s leaders asking co-workers if they wanted to be “gang-banged,” tolerating crude and derisive jokes and “water cooler” talk, and even allowing an employee to openly watch porn at his desk. The ensuing media storm was fierce and the fallout swift. The Mavericks’ outspoken owner, Mark Cuban, claimed he had “no prior knowledge” of the pervasive workplace culture issues. Of course, ignorance is not a defense to the law; nor is it an effective way to run a company.
The steady drumbeat of allegations against fallen celebrities, and reports from survivors of assault and harassment, has sparked a renewed national discussion about sexual harassment in the workplace; a stubbornly persistent issue that never left, but also never felt so visible. All employers should use this moment to review how they can improve the work experience for all employees regardless of gender, race, ethnicity, disability or any other protected status, because it is good policy, and a bottom line business issue.
Businesses that think this movement cannot reach them should think again. Even the best run businesses maintain echoes of outdated and ineffective sexual harassment prevention strategies, putting well intentioned businesses at risk of significant exposure. Businesses that believe they are protected from liability because they have a policy forbidding sexual harassment and conduct occasional trainings must be reminded that the Mavericks also likely had a policy forbidding sexual harassment and conducted occasional training, to no avail.
Employers that make positive changes will accomplish several goals, and obtain an advantage over the competition. First, they will avoid costly lawsuits, that can be expensive and devastating, even when the employer ultimately prevails. Furthermore, they will better retain and recruit top talent, key at a time of historically low unemployment. To succeed today, employers must build and maintain a healthy, diverse and respectful work environment that abandons broken paradigms of the past. Recent studies and academic reports support what many of us already knew; that lecturing people not to harass and policies without action will not change hearts and minds. A cultural moment of this magnitude requires fresh thinking.
Step one: Take inventory
Take this opportunity to perform a comprehensive review of your workplace sexual harassment and discrimination policies, reporting guidelines, investigation process and discipline tools. Set your company standards higher than “don’t sexually harass people.” Encourage reporting of issues or concerns. Establish a “code of conduct” that goes above and beyond the legal baseline.
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 the problem. Throw out “zero tolerance” policies that may prevent employees from reporting anything for fear that the transgression will result in immediate termination, instead of potentially receiving a more appropriate corrective counseling. Also, employers should review investigation and disciplinary policies to ensure a fair process and measured response to complaints. Good coaching and counseling can address minor issues and offenses before they become larger systemic issues.
Step two: Train your leaders
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. These trainings should be longer than the usual 30-minute, check the box, agenda item at the yearly retreat. Trainings and discussions should be led by an attorney that specializes in this area of law and include a workshop that provides 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.
Step three: Engage your 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 borderline useless; nobody thinks of themselves as a harasser, and some of the employee conduct at issue may actually be well-intentioned, albeit misguided.
To encourage employees to actively engage the issues, a training should focus on how to respond or report an issue when they overhear or learn of inappropriate conduct. 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.
Companies that focus on proactive change will have an opportunity to evolve and thrive. Companies that don’t will risk experiencing their own “Mavericks” moment and may become the next casualty in the #MeToo movement.
Anthony Kuchulis focuses on representing employers and management in employment litigation.  He regularly advices on a variety of employment law topics and works to address issues and potential exposure, while ensuring his clients have the information they need to make the best decisions given their specific circumstances and business needs.

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Anthony Kuchulis of Barran Liebman LLP

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