Viewpoint: It's Time to Take a New Approach to Sexual Harassment Prevention

By Jathan Janove, J.D. Jan 18, 2018
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​Jathan Janove, J.D.

​I believe employers' efforts to eradicate sexual harassment may be misguided because they focus on compliance, claim prevention and defense instead of striving to create cultures grounded in mutual respect. 

But that's just my opinion

So, for this article, I asked senior HR professionals, employment attorneys and others the following question: 

What must we do to eradicate workplace sexual harassment? 

Charlotte Miller, attorney and human resources leader

I am and have been a chief human resources officer (CHRO). I've also been corporate general counsel, state bar president and practicing employment law attorney. And I'm a #MeToo. So here's my take.

Forget about the law. Get rid of the phrase "sexual harassment." Few people bring claims, and fewer win cases, because the law is narrow. Focus on respect and culture. An employer can win a sexual harassment lawsuit but have a toxic culture. When you talk about the law, you discuss the concept of pervasiveness (How many sexual jokes can you tell in a year before it is sexual harassment?) or unwelcomeness (Did the recipient laugh [or] joke?) The hairsplitting about those concepts may make for great litigation but [also] a horrible workplace.

Instead of the legal jargon, let's focus on an environment of respect where people understand acceptable interaction because they see it, not because they read and signed a policy. Model respect through language, actions and daily interactions. Don't joke about being "politically correct" or keeping out of trouble with HR.

I have experienced inappropriate touching, sexual overtures, demeaning behavior, and bias that was harmful to the workplace and me. It distracted me from my work; interfered with creativity, collaboration, and problem-solving; and kept me and others from being their best. People show up in the workplace to work, to be smart, to solve problems, to be part of the team. Every time a person is treated dismissively, is made to feel invisible, is made to feel like an object, is not allowed to have a voice, is not paid equally [or] given opportunities equally, [then] the workplace loses, and every employee loses—and a foundation is laid that is ripe for sexual harassment and, worse, for disrespect and disengagement. 

David Nuffer, chief judge, U.S. District Court for the District of Utah

We need to work together to design a reporting system for improprieties that don't rise to legally actionable harassment or for persons who don't want to initiate disciplinary processes. Focusing on actionable harassment takes energy away from the goal of cultural strength. So, we need to design a system that allows microaggression, inappropriate behavior or harassment that is not actionable—and even actionable harassment—to be reported without triggering discipline. Employees need to know the limitations of these [nonconfrontational] approaches to choose them wisely, but they validate the complainant, provide assistance and educate the employer on organizational needs. 

Sally Helgesen, coauthor with Marshall Goldsmith of the upcoming book, How Women Rise (Hachette Books, 2018)

Bullying is allied to harassment, which may or may not be expressed in sexual behavior. In reviewing 20 cases of men who were let go from high-profile positions because of egregiously inappropriate behavior with women, I found the majority of them were viewed as [nonsexual] bullies by men who worked with them in subordinate positions. I believe greater awareness of this link and zero tolerance for bullies, whose behavior is often overlooked on the grounds that they are high-performers, would protect potential harassment victims while building more humane and far more productive cultures. 

Paul Falcone, CHRO and best-selling author

Follow this simple wisdom: What you want for yourself, give to another. Teaching employees to filter their conversations and body language through the eyes of a family member or child—to speak as if your mother is listening or consider if you'd want your son's boss to speak to him this way—is a simple, yet very effective, investment that changes culture. 

Chai Feldblum, commissioner, Equal Employment Opportunity Commission, and coauthor of Report of the Select Task Force on the Study of Harassment in the Workplace

Using the lessons of the "It's On Us" campaign in college campuses, employers and employees should launch an It's on Us @Work campaign. This campaign would galvanize the collective efforts of everyone in a workplace to be engaged actors in stopping harassment.

Most people do not like seeing someone else in the workplace being harassed. But some people don't see it as their problem, others do not know what a realistic response might be, and almost everyone is afraid that if they get involved they might suffer retaliation.

An It's on Us @Work campaign would create a collective sense of responsibility for a workplace free of harassment and offer realistic tools for intervention when harassment occurs. It would include training on what conduct is inappropriate in the workplace (regardless of whether it is illegal conduct), create motivation among employees to reach out and help targets of harassment, and provide employees with skills training and realistic options for bystander intervention.

This is the moment for all social actors—government, employers, employees and the public at large—to come together to do something different and dramatic. Launching an It's on Us @Work campaign is a good place to start. 

Gretchen Carlson, author of Be Fierce: Stop Harassment and Take Your Power Back (Hatchette Center Street, 2016)

Being fierce means standing up and speaking up for yourself even when you feel all alone. But it also means protecting yourself. In my book, I offer a 12-point plan to navigate the often choppy waters of coming forward. First and foremost, get legal advice before doing anything. Second, document, document, document—and take it home from work. Finally, tell at least two trusted colleagues. In the "he said/she said" world we live in, you need to make sure you have witnesses. Coming forward takes immense courage but it's my hope employers will take notice and realize it is incumbent upon them to review their policies, training and reporting methods to make sure women and men feel safe to be fierce. 

Ava Doman, CHRO, Zetec Inc.

Cultural change within a company is typically an evolutionary process. A series of daily decisions and behaviors exhibited by each person within a company indirectly shapes that culture. A workplace that has human dignity and respect at its foundation begins to shape a positive company culture of transparency rather than focusing on the compliance-related approach to reduce (or eliminate) bullying, harassment or sexual harassment. For me, treating others with human dignity and respect is what it's all about—in actions, in words, in commitment.

On a personal note, I'm a member of #MeToo. And yet for reasons cited in Jathan's recent blog post, I took no action—not even telling my husband.

We've got to get away from legal compliance to human dignity and respect! 

Paul Jones, chief leadership development officer, USANA Health Sciences

A culture of respect starts at the top. When an organization's top leaders demonstrate in word and deed a commitment to respect, dignity and professionalism, the benefits include but aren't limited to preventing harassment. Leaders must also demonstrate a commitment to openness, transparency and a "permission to speak freely" environment where no one will fear the consequences of reporting a problem. When employees see that leaders consistently do the "right thing" without over or underreacting, there is greater trust and confidence to be open about behaviors that are inconsistent with the culture. 

Corbett Gordon, employment attorney

With sexual harassment policy and training, many companies have the primary goal of creating an affirmative defense to a sexual harassment lawsuit. To that end, they draft policies that are exacting and punitive in nature. At the same time, these companies have moved away from enacting civility codes to promote respectful behavior in the workplace. They seek to avoid violating the National Labor Relations Board's (NLRB's) strict rules prohibiting any policy that might have a chilling effect on employees' rights to criticize. 

As a counselor to companies that want to promote respectful, productive and caring workplaces, I have been appalled at the effect that the NLRB's policy policing has had. Under the current administration, however, the NLRB pendulum is swinging back to a rule allowing civility rules at the same time that Time magazine and most of America has said, "Enough!" 

Michael Patrick O'Brien, employment attorney

Employers must follow the model recommended for good personal health—prevention and treatment. An organization must try to prevent harassment by 1) effective training, 2) clear policies, and 3) creating a culture of respect and civility, but it also must swiftly treat any conditions that do arise by 1) investigation, 2) enforcement of policies, and 3) appropriate remedies needed to ensure the maintenance of a culture of civility. 

Jennifer Freyd, professor, researcher, author and consultant

A huge problem is what my colleagues and I call institutional betrayal. When people speak out against sexual harassment, the institution often betrays them and makes the victimization worse. Betrayal can include insensitivity, silence, downplaying the offensive behavior, [and] subtle and overt retaliation. We found that over 40 percent of college students who were sexually victimized in an institutional context also reported experiences of institutional betrayal.

Replace institutional betrayal with institutional courage. Conduct anonymous surveys to assess the likelihood of betrayal. Revise policies and training programs to encourage reporting. Train HR and others to respond to complaints with active listening. Enlist leadership support in conveying the institution's commitment to a betrayal-free environment. Devote the resources that show the institution really cares. 

Amos N. Guiora, professor at S.J. Quinney College of Law, University of Utah

Focus on the bystander. While the victim-predator dynamic is, naturally, the focus of public and media attention, it is an incomplete configuration. In reality, the correct metaphor is a triangle, rather than a straight line connecting two actors. Why a triangle? Because there is often a third actor who facilitates the predator-perpetrator. That actor is the bystander.

The perpetrator is dependent on bystander inaction that facilitates the perpetrator. It is the crime of omission. While the bystander is not responsible for the initial harm, the conscious decision not to act enhances the vulnerable victim's peril. 

Next Steps

If you have a best practice to share regarding how to end workplace harassment, please contact me at Jathan@jathanjanove.com. In a future article, I will coalesce contributions to suggest an overall action plan.

Jathan Janove is the author of Hard-Won Wisdom: True Stories From The Management Trenches(AMACOM 2017.) He will be speaking at SHRM's upcoming Employment Law & Legislative Conference and was recently named in Inc. Magazine as one of The Top 100 Leadership Speakers for 2018.


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