Published in NH Bar News (April 13, 2018)
Another day, another celebrity, politician, news anchor or high-ranking member of the military disgraced by allegations of sexual harassment. And on March 20, 2018, it was Bill Voge, Managing Partner of Latham & Watkins, one of the top global law firms and the very picture of BigLaw. Voge resigned his post following, according to Law360, the discovery of embarrassing communications “of sexual nature with a person not connected to the firm.” The messaging has been short of detail on the communications at issue and the reason that interactions with someone unrelated to the firm led to such a precipitous fall, but the event has sent shock waves through the legal community.
Last fall, two Equal Employment Opportunity Commission (EEOC) commissioners speaking to an audience of labor and employment attorneys said that visits to the sexual harassment page on the organization’s website increased fourfold after the Harvey Weinstein scandal broke. The message to employers: be prepared for an onslaught of new allegations and claims. Given the patterns that preceded the recent claims now dominating the airwaves, the EEOC is likely not surprised by these developments.
In 2015, the agency received almost 28,000 charges of discrimination alleging workplace harassment – a number that has remained relatively constant over the last five years. In response, the EEOC formed a task force which spent a year studying the issue. They issued a report in June 2016, entitled “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace,” which described some telling results.
The task force concluded sexual harassment remains a significant workplace issue. It also concluded that workplace sexual harassment training initiatives are often ineffective in stopping such misconduct. “Much of the training done over the last 30 years has not worked as a prevention tool,” the EEOC commissioners wrote, adding that “ineffective training can be unhelpful or even counterproductive.” They found that the most common trainings are designed to minimize legal risk to companies rather than to change behavior in supervisors or employees.
The report does provide some recommendations to address the problem. The task force suggests that employers tailor programs to meet the particular needs of the company, developing a “holistic culture of non-harassment that starts at the top” and holds all levels of employees accountable for their role in prevention.
“One size does not fit all” and unique programs are needed to “ensure that those who engage in harassment are held responsible in a meaningful, appropriate, and proportional manner, and that those who job it is to prevent or respond to harassment should be rewarded for doing that job well (or penalized for failing to do so).”
The report provides practical resources, including checklists and a “risk factor” analysis, to help employers assess their organization and respond appropriately. Finally, the Report proposes exploring new approaches to anti-harassment trainings, including “bystander intervention trainings” – that give employees tools to intervene when they witness harassing behavior – and “civility trainings” – that foster a general culture of respect and workplace civility aimed at all employees, regardless of whether a person falls into a legally protected class.
The report reiterates the long-standing recommendation against cookie cutter or web-based trainings, and reminds employers that interactive sessions with scenario-based discussions using hypotheticals relevant to the workplace itself are far more effective. More recently, those of us who conduct such trainings have gone further and incorporated small group discussions and role play into training sessions to encourage forthright discussion about the impact of harassment and to foster understanding and empathy.
Bystander intervention training is not a new idea. Schools have for some time utilized this approach to address bullying. After all, a middle school student in a locker room with his peers is far more likely to respond to their admonitions to stop teasing a teammate than he is listen to a lecture from his coach. Similarly, an employee in the plant cafeteria loudly telling ethnic jokes at break time is more likely to stop if other employees speak up to say his comments are offensive.
Perhaps most disturbing is the fact that women continue to be reluctant to come forward to report even the most egregious behavior out of fear that they will not be believed or that they will suffer retribution for raising a complaint against a powerful person. Even women now finding the courage, likely bolstered by the sheer number of others who have spoken up, are chastised and questioned as to “what took so long” by other women. One must wonder how the bartender, administrative assistant and production worker can be expected to speak up when it took Ashley Judd, Kate Winslet and Megyn Kelly decades. Clearly, effective training has to include the notion of empowering victims and bystanders to report without fear of retaliation.
Employers wondering if the latest public scandals are limited to the high and the mighty have only to look at social media and the task force report to see that harassment affects all manner of workplaces and all levels of employees.
The risk factors mentioned in the task force report are worth reviewing:
• Homogenous workplaces where the majority of individuals are of a particular gender, race or ethnic group create the potential for the minority to be singled out to be made uncomfortable;
• Workplaces where some do not conform to behavioral or sexual “norms;”
• Workplaces with younger workers who may be particularly vulnerable to advances or where young managers may not be properly trained in appropriate behavior;
• Workplaces with “higher value” employees such as those who bring in more sales or clients or those who possess particular creative talents or technical skills, the “we can’t lose him” employee;
• Workplace cultures that tolerate or encourage alcohol use; and
• Workplaces that rely on client service or satisfaction, where those employees most admired by the client or the company’s audience are protected even if they behave poorly.
The task force report confirmed that the problem has not gone away, and the recent flood of public disclosures demonstrates how critical it is for businesses, including law firms, to act swiftly to address the issue with meaningful training programs, appropriate role models and swift remedial action when policies are violated.