Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column.
I handled my first sexual-harassment case in the 1980s. A woman victimized by a male supervisor. Complaints of offensive behavior ignored. HR—no help.
What has changed since then?
You could say a lot has changed. And you could say nothing has changed.
Since the 1980s, we've experienced explosive growth in the HR profession, the employment law profession and HR consulting. At the same time, we've experienced explosive growth in employment litigation.
What we haven't experienced is improvement in ensuring harassment-free workplaces. And we haven't experienced improvement in HR effectiveness in preventing harassment. You're as likely to be sexually harassed today as when I first began practicing law.
Since my first case, I've seen many instances where HR behavior fell far short of acceptable—festering problems ignored, shoddy investigations conducted, findings and conclusions whitewashed.
Unfortunately, this reflects the realities of workplace dynamics.
In cases where HR conduct fell short, sometimes egregiously so, I never felt it was because of malevolence. Rather, it was because of a reluctance to speak truth to power. HR did what was safe for HR. The messenger didn't want to get shot.
Proactivity, diligence and commitment to anti-harassment principles were less likely to result in harassment-free workplaces than they were to result in unemployment for HR professionals.
3 Reasons Things Don't Change
This problem is common for three reasons:
- Cognitive dissonance. CEOs and other senior leaders fail to realize that how someone treats them is often entirely different from how that person treats peers, subordinates and others. "George is not like that!" "John wouldn't do such a thing. I know him and his family!" The leader resolves the cognitive dissonance by concluding that Dr. Jekyll could only possibly be … Dr. Jekyll.
- Prevalence of misbehavior by top performers. In a world where short-term gains and losses are emphasized, firing a top performer can make that person's manager look bad. Cognitive dissonance meets confirmation bias—the tendency to select and interpret facts in a way that supports one's self-interest.
- Conventional harassment-prevention measures. In my experience, mind-numbingly boring harassment training sessions coupled with "scare you straight" zero-tolerance policies promote two things: a belief by targets of sexual harassment that it's better to be silent than sorry, and an attitude on the part of those accused of harassment that the best defense is a good offense. Strike back: You're not a perpetrator! You're a victim of a false accusation! The bottom-line message: Your employer doesn't care about creating a great work environment; it simply wants to cover its you-know-what.
So what's the solution?
It's simple: the CEO.
The responsibility starts and stays at the top. And CEOs must embrace that responsibility—not because they want to successfully defend lawsuits and prevent claims, but because they are committed to every human being at their organization being treated at all times with civility, professionalism and respect, and feeling safe.
If that's the CEO's commitment, the question is not "Was the behavior sexual?" It's "Was the behavior professional?" The question is not "Was the behavior unwelcome?" It's "Was the behavior respectful?" And the question is not "Does the behavior meet the legal harassment test?" It's "Does this behavior support our commitment to a respectful, safe and secure work environment for all?"
Where does HR come in?
HR's job is to make the CEO's commitment a reality. If you get this CEO-HR alignment, the results will be astounding.
"Since filing my lawsuit against Roger Ailes at Fox News three years ago, I've come to realize fixing harassment in the workplace is a tangled web," said Gretchen Carlson, author of the New York Times bestseller Be Fierce: Stop Harassment and Take Your Power Back (Center Street, 2017), in an e-mail interview.
"However, the buck does stop at the top. Imagine if every CEO … would make a commitment to themselves and their workplace that harassment is a nonstarter and that people who engage in that behavior will be terminated. And, that people who come forward, whether it be victims or bystanders will be celebrated," Carlson said.
"This will be the final part of the tipping point we are experiencing right now in what I like to call a cultural revolution of acknowledging and believing women who find the courage to come forward and say #MeToo."
What Others Have to Say
I reached out to employment experts. Here's what they had to say.
"I don't think your premise is so radical," asserted Dana L. Sullivan, an attorney with Buchanan Angeli Altschul & Sullivan in Portland, Ore. "I agree with it and would go so far as to say that it's not just the CEO, but the executive team and the managers reporting up to them. That means the company has to hire and promote folks into management roles whom they are confident will share the CEO's attitude toward a respectful culture."
Sullivan shared a recent experience where she attended a #MeToo program that included a presentation by Rachael Wong, former director of Hawaii's Department of Human Services, whose accusation of sexual harassment against Rep. Joe Souki led to his resignation.
"Wong gave an example of the president of the largest bank serving the Hawaiian Islands. [The president] recently implemented a policy, announced to all of the bank's employees, that if an employee was terminated after an investigation confirmed that the employee had violated the bank's anti-discrimination policy, the bank would be honest with prospective employers when providing a reference about the reason for the employee's discharge."
As Sullivan explained, "The president's position was that she would rather face a claim by the terminated employee than pass around a harasser within the Hawaiian community."
Although he agrees that "CEO commitment is essential to eradicate workplace harassment," Michael O'Brien, an attorney with Jones Waldo in Salt Lake City, thinks I'm being too hard on HR. "Right now, I am defending a couple of employers in lawsuits brought by harassment perpetrators. In each situation, HR stepped up and did the right thing to terminate male employees who did really inappropriate things."
O'Brien said harassment persists today because of "stupid perpetrators who insist they can break the well-articulated and commonsense rules of workplace behavior."
According to Sally Helgesen, co-author of How Women Rise (Hachette Books, 2018), "HR cannot solve the problem of sexual harassment in the workplace. HR can be a valuable resource in helping to convey policies and shape practices based on zero tolerance for egregious behavior, but only if senior leaders clearly demonstrate their commitment."
Helgesen recommends that at every organizational level, leaders must be persuaded that harassment is unacceptable. "The shadow of the leader matters here," she said. This means leaders "must be prepared to let high producers, rising stars and established stars go whenever their behavior crosses a serious line. If they do not, people at all levels get the idea that the leader is only talking the talk, trying to prove his or her political correctness, rather than creating a culture of respect for all."
Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to JathanJanove@comcast.net.