The list of high-profile executives and celebrities who’ve been accused of sexual harassment grows longer by the week. But the wave some are calling the Weinstein effect–in which those who’ve been victims of harassment on the job are coming forward to say #metoo– isn’t taking into account that there are many, many more who remain silent or anonymous because they fear retaliation–even if the law is technically on their side.
The law defines sexual harassment as a variety of behaviors, from unwanted advances to offensive comments, “so frequent or severe that it creates a hostile or offensive work environment, or when it results in an adverse employment decision (such as the victim being fired or demoted).”
Of course, sexual harassment doesn’t just happen to women, but it does happen to women more often. In 2013, for example, over 10,000 charges involving sexual harassment were brought to the Equal Employment Opportunity Commission (EEOC), 82% of them by women. Despite laws, regulations, and copious avenues for training, the EEOC found that harassment in the workplace is alive and well.
Janine Yancey is an employment attorney and founder and CEO of Emtrain, an online compliance education platform. She has not only handled dozens of cases relating to harassment, she’s also been on the receiving end of unwanted advances during her career. She notes that part of the reason workplace harassers thrive unchecked is an imbalance of power. Many of those who find themselves in such a position, she says, are younger and have less power in the workplace.
The other reason harassment continues relatively unabated has been because not many employees want to go to HR and escalate a complaint because they feel that the law is on the employer’s side. Yancey says “filing a lawsuit is the ‘nuclear’ option as it often invites a scathing critique of the victim as well as damage to the victim’s professional reputation.”
What may happen instead is that the employee who feels victimized will confide in their immediate supervisor (provided they aren’t the same person as the one who’s displaying the unwanted behaviors), or another middle manager who oversees a neighboring team. This person may have little to no experience other than basic training on how to deal with reporting the allegations and may feel unprepared to take the next step.
A good first move to make is to watch the language used when reporting the claim. The manager will be the investigator, and it’s important that they make factual determinations rather than legal conclusions, or any other conclusions regarding potential policy violations, according to Yancey. “Factually describe the situation without using loaded terms like ‘harassment’ or ‘inappropriate,'” Yancey advises. “Just write the facts and consequences of those facts,” she says. “If described well, the company will see the risk and take action.”
Steve Cadigan, founder of Cadigan Talent Ventures and former VP of talent at LinkedIn, has investigated harassment claims at every company he’s worked for over the years. He’s personally experienced times when an employee reports some questionable behavior but doesn’t want the report escalated to HR or leadership. He says it’s the manager’s job at that point to tell the employee that they have an obligation to look into the allegation and reiterate that the company has a no-retaliation policy. They also need to reassure the person who feels victimized that their identity is going to be protected, and the report is only going to involve them and the alleged perpetrator.
Sometimes, says Cadigan, the person is so emotionally distraught that they may require taking some paid leave. “This doesn’t put them in a bad light,” he contends, “It gets them to a safe place.” He suggests offering a list of counselors who can help, and also assure them that the investigation will proceed as fast and rigorously as possible. “It may take a few days or a week,” he adds, “but give them updates every step of the way.”
Yancey questions the practical value of paid time off after a claim is reported. She saw this happen earlier this year when coaching an acquaintance who was able to take some leave. “They came back and nothing changed,” Yancey recalls. “It gives them a hiatus to collect their thoughts, but it’s not solving the problem.”
Cadigan says one thing he wished he’d known early on in his career dealing with these reports was how defensive and fearful the accused could become. “I don’t think I knew how scared someone was going to be, how ashamed they felt if they believed they did nothing wrong, how nervous they were about viability of their future employment, and how quickly that turned from fear to anger,” he recalls.
Although this is a challenging position to be in, Yancey contends that these mid-level managers are in the best spot to uphold the company’s values as guardians of a culture “that is positive and respectful and does not allow ostracism.” She says that this may not be deliberate, but if word gets out that something is afoot, some team members may feel awkward around both the victim and the accused and do things to exclude them. This is where, says Yancey, a manager could step in and neutralize the situation.
“Half the battle is knowing what words and phrases to use,” she maintains, “so no one feels castigated. We need to create a situation where people feel comfortable talking about these issues.”
Part of the way to do that is to be proactive about dealing with harassment before it becomes a problem. Linda Seabrook, general counsel at Futures Without Violence (FUTURES), and a former subject matter expert for the U.S. Department of Justice (DOJ), suggests that mandatory training should be more than a onetime session conducted by lawyers.
“Training should be part of a holistic program that is about the prevention of harassing and abusive conduct, not the prevention of litigation,” she says. The best way to do this is in-person, interactive sessions that focus on changing behavior rather than studying laws and procedures. Bystander intervention training is also necessary to ensure that harassment can be rooted out as soon as it’s observed.
Seabrook also recommends conducting a sexual harassment workplace climate survey that employees can take anonymously and then report the results and invite a conversation afterward. And while managers are at it, they would do well to re-evaluate their performance reviews. According to Seabrook, supervisors need to rethink what “high performer” or “good supervisor” really means. “If someone has engaged in disrespectful or abusive conduct with coworkers,” she says, “then these acts should be taken into account regarding the perpetrator’s work performance.”
Yancey adds that it helps to proactively remind the team that it’s in everyone’s best interest to create a healthy workplace dynamic. If something like this does happen, she says, the manager needs to emphasize that it is up to everyone to fix it. Above all, they need to express gratitude to the person voicing concern, she says, in order to reinforce the message that such behavior won’t be tolerated. “Do it quickly and early.”