When HR Gets It Wrong: Misconduct Won't Change Until the Culture Does

Introduction

​This is the last in a four-part series of articles—"When HR Gets It Wrong"—that explores why creating a "culture of civility" may help to prevent workplace misconduct, inequity and other problems.

Recent headlines about sexual harassment and discrimination—at Fox News and Uber, for example—are stark reminders that HR departments aren't always successful at preventing misconduct at work. When it does arise, HR departments aren't necessarily responsive or quick with remedies. And in the opinion of many experts, nothing—not good training, solid investigations or even a dedicated HR department—will change that unless the workplace culture changes first. 

In the modern nomenclature of HR, there is much talk about preventing not only workplace harassment and discrimination but also bullying, a lack of inclusion and other inequities by creating a "culture of civility." Such a culture, HR experts say, emphasizes respect and fairness for every employee at a company. And it's a culture, they add, that must be practiced from top leaders down to front-line employees.

But what does having a culture of civility really mean? What does it look like? And how can HR professionals foster it?

"A culture of [civility] is one in which you expect to be treated as though you matter, [where] your employer values you and [where] you believe your work matters," said Fran Sepler, who's been hired by the Equal Employment Opportunity Commission (EEOC) to create training for the federal government to prevent uncivil, rude, abusive, discriminatory and harassing behavior. She is president of Minneapolis-based Sepler & Associates, which provides services and advice to organizations that want to create a respectful workplace. "This is not to say rudeness, abuse, unfairness and even harassment wouldn't happen but that you would know that it was not acceptable. If something happened that should not, you would feel confident to try to address it right away, without worrying about retaliation; you would know where to go for help, and you would trust that whomever you went to for help, they would take you seriously." 

What Is a Culture of Civility?

To understand what workplace experts mean by a culture of civility, it may be best to start with what an "uncivil" workplace culture looks like:

It's a culture that either accepts or ignores inappropriate behavior—from insults and yelling to sexual harassment—because that's what has always been done.

It's a culture that often allows top performers to behave in ways other employees would be disciplined for.

It's a culture where workers don't feel confident reporting misconduct or unfairness because they're either resigned to the idea that nothing will be done or they fear retaliation.

"Companies that have repeated complaints of harassment [or other misconduct] usually have a serious culture problem," said Alisa Shorago, an attorney and owner of San Diego-based Shorago Training Services, which provides anti-harassment training.

Shorago spoke about the forced resignation of Fox News CEO Roger Ailes after female workers complained about his alleged sexual advances and the sexual harassment and discrimination charges leveled by a former Uber engineer. Uber CEO Travis Kalanick hired an independent investigator to review the engineer's claims, then resigned under pressure after the investigation resulted in Uber firing more than 20 employees, though he remains on the company's board of directors. In addition, University of Missouri System President Tim Wolfe and Chancellor R. Bowen Loftin resigned in November 2015—following complaints that they failed to address racial discrimination of students and to hire more faculty members of color. 

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"A key commonality is that [Ailes and Kalanick] were reported to have engaged in repeated behavior that was not only autocratic but showed extreme disrespect to others in their organization," she said. "For instance, before Fox News, when Ailes worked for CNBC, NBC ultimately conducted an investigation that concluded Ailes had a history of abusive, offensive, and intimidating statements/threats and personal attacks on multiple people. Travis Kalanick was caught on tape yelling at one of his drivers and previously referred to his company as 'Boob-er.' "

Uncivil workplace cultures are increasingly tolerated thanks to social media, which can encourage people to insult or attack one another because they aren't face to face, said Sepler.

"If you have spent any time [on] social media, you will observe a degree of uncivil discourse that is brutal," Sepler said. "Name-calling, insulting, even threatening language have become the norm. This … not only sets a decidedly low bar, but it normalizes harsh, aggressive communication. [That] comes to work. When employees' [emotions] are triggered over political, religious or worldview differences, the knee-jerk response is to tear into someone."

From the Top Down

The EEOC hired Sepler after an EEOC task force concluded in a June 2016 report that companies still had "far to go" in addressing workplace harassment.

"We made it very clear that training is going to work only if there is a more comprehensive effort to change the [workplace] culture," said EEOC Commissioner Chai R. Feldblum, co-author of the report with EEOC Acting Chair Victoria A. Lipnic. "People often say this starts at the top, and my feeling is, well, that's pretty obvious. But what does that mean?"

While the report focused on harassment, particularly sexual harassment, its conclusions and suggestions could be applied to other workplace issues, such as discrimination, bullying, lack of diversity or pay inequity.

Feldblum and Lipnic's report suggested that four components must be evident at an organization if it stands a chance of curtailing harassment or of successfully addressing it when it arises. All four components put responsibility squarely on leaders' shoulders:

• Values. "Leaders actually have to believe that harassment [and other misconduct are] wrong," Feldblum said. "The chances of changing a culture are practically nil if the person at the top thinks that it isn't wrong."
• Authenticity. "Workers who hear leaders say something is wrong have to believe that the leaders are authentic," she said. "Employees hear leaders say a lot of things and they don't always see follow through."
• Situational awareness. Leaders can't wait for employees to come to them with complaints, Feldblum said. They must regularly check the climate at their company, perhaps by conducting anonymous surveys that ask employees specific questions about misconduct. For instance, she noted, studies show that upwards of 70 percent of employees who've suffered sexual harassment never lodge an official complaint about it. "You have to ask, 'Have you experienced any of the following behaviors?' You can't just ask, 'Have you experienced sexual harassment?' Lots of people don't call certain conduct harassment, even if it is."
• Accountability. Once a worker has reported misconduct to a supervisor or manager, that higher-up is "obligated to follow certain procedures—including connecting with HR," Feldblum said. "Managers who don't must be held accountable, and employees must see that they're held accountable."

In the experiences of experts interviewed for this article, there are few executives who don't subscribe to these ideals. But they are often so far removed from the day-to-day happenings at their organizations that they can be caught flat-footed when misconduct or unfairness comes to their attention.  

This checklist, from Feldblum and Lipnic's report,  helps leaders ensure that they're creating a workplace culture of respect where harassment isn't tolerated:

• Leadership has allocated sufficient resources for a harassment prevention effort.
  
• Leadership has allocated sufficient staff time for a harassment prevention effort.
  
• Leadership has assessed harassment risk factors and has taken steps to minimize those risks. 
  

Among those risks factors, the report noted, are: alcohol consumption at work events; isolated work spaces that might allow someone to harass another without being seen or heard; workplaces with significant power disparities; and homogeneous teams, departments or C-suites. 

The latter element is potentially troublesome, the report pointed out, because when a team, department or C-suite is dominated by people who are alike, employees in the minority can feel isolated and may be vulnerable to pressure—including harassment or discrimination—from others. Moreover, the report said, employees in the majority may feel they can get away with harassing or discriminating against those who are different.

The report called for increasing "diversity at all levels of the workforce, with particular attention to workgroups with low diversity." 

Ensuring Diversity

"The less diverse an organization is, the more likely [misconduct or unfairness] is to occur against the nondominant group," said Patty Wise, a partner with Toledo, Ohio-based Niehaus Wise & Kalas Ltd. and co-chair of the Society for Human Resource Management's Labor Relations Special Expertise Panel. "So, for instance, if the workplace is predominantly male, then women will be more likely to experience harassment. This is an even greater risk when significant power disparity exists between the two groups. Lower-level employees are particularly susceptible to harassment, and those in power may feel entitled to take advantage of those employees." 

Debra Katz is a partner with Washington, D.C.-based Katz, Marshall & Banks who has litigated employment discrimination, civil rights and whistle-blower protection cases for more than 30 years. She says the social science literature demonstrates that people like to hire people who look like themselves.

"When you have an organization, for instance, that's mostly male and white, that's who you will see hired [in leadership roles]," Katz said. "They may not have sensitivity to [disparate] wages issues or to women taking time off to care for family, or they may stereotype women as [being] less serious about their jobs than men."

That's not to say that an organization top-heavy with another group—for instance, younger people or women or Asians—won't experience discrimination, harassment, pay inequity or similar problems, said Karen Kruse, an employment law attorney in Seattle.

"Consider the prevalence of media reports on sexual harassment claims involving a wide variety of businesses and workplaces, even those where leadership is not limited to a 'good old boy' network," she said.  

Sometimes, workplace experts said, it helps for a company's board of directors to oversee diversity in hiring and promotions, particularly in the top ranks. It may also help, they said, to have a diversity and inclusion officer in HR who answers to someone other than an organization's leaders.

An independent report about Uber conducted by former Attorney General Eric H. Holder Jr., released June 13, suggested these steps, as well as others, for the company: elevating the profile and responsibilities of Uber's diversity and inclusion officer, adding members to the board who commit to putting the report's directives in place requiring leadership and managerial training to prevent harassment and discrimination, prohibiting intimate relationships between employees and their bosses, limiting alcohol consumption at company events, and diminishing Kalanick's role as CEO by giving some of his responsibilities to a chief operating officer.

From Reporting to Discipline to Training

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