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  • Writer's pictureBrad Federman

#WeToo Need More Than Compliance

By Brad Federman

Over 50 years ago, the Civil Rights Act of 1964 outlawed discrimination based on race, color, sex, religion or national origin. Nearly 20 years after that, The United States Supreme Court formally recognized sexual harassment as a form of discrimination under Title VII. As time went on, the law changed and adapted to protect against even more types of discrimination. This was seen as progress; a strong and moral direction for the country and for all organizations. With all of the many activities centered on compliance, employers and employees should expect less discriminatory behavior.

Right? Yet, in 2018, the opposite seems to be true.

Think about all of the compliance activities we engage in. Here is just a partial list:

  • Multiple policies on harassment, sexual harassment, discrimination and bullying

  • Policy sign offs

  • Complaint procedures

  • Investigations

  • Manager training on discrimination and harassment

  • Employee training on discrimination and harassment

  • Anonymous hotlines and websites

Even with strict regulations and scheduled activities in place to combat harassment and discrimination, the Equal Employment Opportunity Commission (EEOC) recorded over 91,000 charges filed in 2016. In addition, accusations through movements such as #MeToo and #TimesUp on social media platforms have shown that harassment continues to go unnoticed in many industries across the country, with the most prominent being in film and entertainment.

In an increasingly connected world with the spread of social media and internet usage, discrimination and harassment does not easily go unnoticed as it may have even two decades ago. How does a company who routinely practices safe and compliant policies protect themselves when compliance activities seem to be failing? To find a solution, we must take a holistic approach and observe the real ramifications of harassment, and how organizational culture can provide lasting protection for employees and employers.

The cost of harassment comes in many different forms, including scarring public relations situations, lowered employee engagement, and significant financial loss for an organization. From a purely monetary perspective, the average cost for a company to defend itself from discrimination cases is estimated to be between $125,000 and $450,000 dollars (SHRM and Hiscox) depending on the size of the company and the complexity of the case. This does not include potential settlements that may occur based on the outcome of the proceedings. Business Insider cites some harassment settlements costing companies as much as $250 million. Aside from financial loss, there are also the passive effects to consider for all employees. Decreased productivity and a high turnover rate can plague organizations who undergo lawsuits for harassment or discrimination. From an outside perspective, the public’s trust in the company plummets and potential new hires are less eager to join the organization. All of these factors will contribute to economic loss in the end, and a poor reputation is not an easy thing to eliminate.

Solutions to these issues begin with training upper-level employees—executives, supervisors, and managers of an organization. Training for these employees has historically been concerned with legal liability and nothing more. This is the mindset that must change: training must move beyond compliance in order to become an effective tool for harassment prevention. Every workplace is different in some way, and so a “one size fits all” approach to harassment prevention training will not truly protect employees or employers. When this baseline legal liability training is used, an employee feels as if there is no one to turn to within their organization, including the Human Resources department, because the only concern is for legal and financial protection, not the health and stability of the employee. The EEOC estimates that nearly 75% of all employees who have been harassed have not spoken to a manager or supervisor about the situation, which is unhealthy for the employee and for the company. When training is done correctly for upper-level employees, they become an avenue to those employees who need to address their experiences.  This is an invaluable asset to an organization, and an excellent first step towards a proactive culture shift.

While lower-level employees should not be expected to spearhead training initiatives, they should be responsible for observing and reporting these behaviors, not acting as a complacent spectator. Several new types of training to address this issue are currently in use by some organizations. One particular type, called Bystander Intervention Training, is used to combat sexual harassment or assault on university campuses. This sort of training empowers and challenges the employee to do more in these situations. In addition, programs known as civility training take a different approach and focuses on supporting a universal respect and courtesy between colleagues in the workplace. Concepts such as these will hopefully continue to raise the bar from legal compliance to a well-defined and safe organizational culture.

Company policy is another matter that must be reviewed and adaptable concerning harassment and discrimination as their definitions change or broaden. What was once not legally considered discrimination may now be enforced by law, such as the 2017 law that requires employers in California with 50 or more employees to provide training on policies that prohibit harassment based on gender identity, gender expression, and sexual orientation.

While it can be a serious undertaking, policy review can pay dividends for both employers and employees who want clarity in company regulations. For example, a recent poll from the

Pew Research Center found that 65% of all adults use social media—a number that is expected to rise over the next decade.

While it is a useful and increasingly necessary tool to have for an organization, there can be obvious issues with harassment over social media platforms, which policy-makers should keep in mind while revising current policies. Some companies adhere to forced arbitration, which means its employees must resolve harassment claims out of court and out of the public eye. For many victims, this does not provide an end to the problem, but merely shields the harasser from harm. Even as most organizational policies tend to lean towards secrecy in these situations, an increasing number of allegations have emerged in the public eye, though companies are being pressured now more than ever to eliminate this policy. Policies should be clear and accessible, with clear avenues for employees to follow if the need arises. In addition to a written document, policies regarding the process of filing complaints should be consistently communicated to employees.

As an employer, it can often be difficult to feel the culture of your organization from the top. Luckily, there are tools that can assist in getting an honest and anonymous opinion from employees. A Climate Survey, when administered and analyzed professionally, will provide you with a strong idea of your employees’ thoughts and feelings towards many facets of the organization, such as creativity, innovation, interpersonal relations, leadership, or development. The vital step after collecting data from a climate survey is to address, within company means, any glaring issues employees may have. This shows employees that upper management listens to their opinions and ideas, and will help to build trust within an organization. In addition to assessing organizational climate, inclusion surveys can more specifically highlight problems those areas which could lead to harassment or discrimination issues.

If an organization receives significant negative feedback from a certain group of individuals based on race, religion, sex, or national origin, then upper management can take the necessary steps to address key issues before a situation devolves. With proper execution, a Climate and Inclusion Survey can be instrumental in gaining a better understanding of your organization.

In a similar way, as a manager, holding team meetings and huddles provide you with the ability to share your vision, set objectives, and give your team a chance to voice their ideas in a way that promotes unity and equality for everyone present. Emotionally intelligent leaders will take this time to listen, watch for non-verbal cues, and gauge the attitude of their employees in a face-to-face setting. Whether it is a discussion or a regulated time period for each employee to explain their current projects, it is an advantageous exercise to do on a regular basis.

While all of the previous ideas will assist in a positive culture change, it is almost always necessary to implement culture and inclusion training in order to provide a clear and overt guide for the organization’s new expectations.

According to Fortune magazine’s 500 top companies, only 3% are transparent about the demographics of their workforce. Culture and inclusion move past the idea of “diversity for diversity’s sake,” and pushes all employees to recognize differences with respect and help one another to succeed in a healthy environment. Diversity can be established from a headcount of employees, but inclusion goes deeper and must be a sustained aspect of organizational culture.

Cases of workplace harassment and discrimination will continue, and likely increase in number, if steps are not taken by employers and employees on all levels in an organization. The conversation is evolving from “What should we do?” towards “Who should we be?” We need to stop reaching for the floor and start reaching for the ceiling. Culture starts at the top. How committed is your executive team? While the process will not be as fast as many companies and employees would hope, it provides the chance for lasting change that moves beyond compliance—creating environments where people feel safe, valued and respected on a consistent basis.

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