Work After #MeToo, Your Questions Answered

The recent public reckoning with workplace sexual harassment has left many people shaken — for good reason. After all, as Joan Williams and Suzanne Lebsock write in “Now What?,” today’s work environment is much different after the #MeToo revelations. Just how different is summarized in their powerful conclusion: Workers who are being sexually harassed should report the abuse. Period. “We’re not sure if we would have advised that, in such a blanket and unnuanced way, even a year ago,” Williams and Lebsock write. Over the past several weeks, ProPublica and Harvard Business Review have been collecting questions from readers about how to work — and manage — in this changed environment. We’ve heard from people who have witnessed harassment, who have been harassed themselves, who have had anti-harassment training, and some who have never had training. They asked questions about how to stop abuse, how to mitigate career damage, how to address harassment in small businesses, and how to talk about sexual harassment more openly. To answer these questions, we called in HBR’s experts in law, management, sociology, business, and government. Their advice is that when it comes to harassment, it’s important to check your company’s policies, build allies and networks, and stand up for yourself and one another. If you have a question about sexual harassment that we haven’t answered yet, send it to us here. I want to help stop abuse that I know is happening, but I don’t want to become entangled in bruising litigation or damage my career opportunities. What can I do? Mary C. Gentile, PhD , is a professor of practice at the University of Virginia Darden School of Business, senior adviser at Aspen Institute Business & Society Program, and author of Giving Voice to Values: How to Speak Your Mind When You Know What’s Right: First of all, it is important to name to yourself your desire and commitment to stop ongoing abuse. Identifying and appreciating your own values is a way to strengthen your resolve. The next steps you take depend on the specifics. If the abuse is happening to you, you would likely take different steps than if the abuse is happening to others and it is not clear how severe or widespread the situation is. Your organization likely has policies and procedures in place that you can research, and I will leave the legal advice to lawyers. However, let me focus on the things that may not be part of organizational policies and legal procedures: Be a support to the targets of the abuse. Let them know you are there for them. Help them to access the organizational and legal resources that do exist. Simply help them to know they are not alone and to rehearse responses and behaviors they can use to stop abusive interactions in the moment. If the behavior is not limited to a specific individual, but is more of a normalized cultural phenomenon, you can be a voice for respectful and professional workplace relationships by joining or creating employee affinity groups; calling out good behaviors; or advocating for action-based training wherein employees are not simply advised of the policies, but have the chance to pre-script and rehearse effective ways to voice concerns when abusive behaviors happen — to them or someone else. Building an empowered and skillful employee voice around this issue makes it more difficult for such behavior to continue in the shadows. Those who abuse will no longer be able to rely on silent complicity. Talk to trusted colleagues and managers in the organization about ways to reinforce appropriate behaviors. One effective approach is for senior leaders to share their “learning stories,” describing how they were tested and worked through positive responses to inappropriate behaviors directed toward them or others. I’ve had to fire someone for sexual misconduct. What else do I need to do? Jonathan A. Segal is a partner at Duane Morris LLP in the Employment, Labor, Benefits, and Immigration Practice Group. He has provided training to federal judges on harassment and other forms of bias. Jonathan also was appointed to the EEOC’s Select Task Force on Harassment: As an initial matter, not all sexual misconduct must result in termination. Rather, the response must be prompt and proportionate, calculated to prevent future harm. However, where the employer has terminated someone who has engaged in misconduct, that does not end the employer’s obligations. Most important, the employer must ensure there is no retaliation of any kind by anyone. Even if there is strong corrective action, if employees do not feel safe in reporting concerns, they won’t. So protecting from retaliation those who made the complaints or otherwise participated in the investigation resulting in the termination protects not only them but also the credibility and cultural viability of the employer’s complaint procedure. At a very minimum, the employer should: (1) assure those who made complaints or participated in the investigation that the employer will neither engage in nor brook retaliation of any kind by anyone and that they should report any concerns about retaliation immediately; and (2) check in periodically with the employees who raised concerns or participated in the investigation to ensure there is no actual or perceived retaliation and investigate if there is any allegation or evidence of same. Leadership should be reminded of the broad scope of what may be unlawful retaliation. Retaliation is not limited to making an adverse employment decision, such as denying someone a promotion because they made a complaint. It could also include material changes to the terms and conditions of an employee’s employment, such as giving him or her harder or less-rewarding assignments. Finally, leaders need to know that they cannot retaliate against individuals who made complaints or otherwise participated in the investigation. What do I owe other women who might wish to apply at this company in the future? Should I be posting reports online? Gentile: Framing this question as a matter of personal debt (i.e., “What do I owe other women…”) positions your potential choices as a burden, as something imposed from outside and possibly a source of guilt. It is often more helpful, more empowering, to frame the question aspirationally: that is, “What do I want to do? How would I like to be helpful?” Posting reports online may have legal implications and certainly raises questions of privacy for the targets of abuse as well as questions about the sufficiency of one’s information. That said, there are many ways to be helpful. For example, if you are employed at the organization in question, rather than simply waving potential candidates away from it, you can try to be a force for positive change. Building an empowered and skillful employee voice around this issue makes it more difficult for such behavior to continue in the shadows. Those who abuse will no longer be able to rely on silent complicity. If you are no longer inside the organization, there are still ways that you can be helpful and supportive. For example, you can share questions that applicants might ask during their interviews. They might ask about the organization’s advancement record (especially for women, minorities, LGBTQ, etc.); about performance feedback practices, both formal and informal; about the organization’s commitment to ongoing learning and leadership development; and so on. Applicants can ask interviewers to share a recent example of a “mistake” that has led to new learning or improved practices is an interesting way to access the openness of the organization. And reaching out to individuals you know inside the organization to be supportive, to encourage them to engage in some of the internal strategies described above, and to help them stop any ongoing abuse that they may be aware of (or the targets of), whether that is through organizational or legal means, is, of course, another significant way to act on your values. How should I be protecting my career from people I may have to rely on in the future for recommendations or references? Elizabeth C. Tippett is an associate professor at the University of Oregon School of Law. She researches employment practices, business ethics, and decision making: It’s illegal for an employer to retaliate against you for a harassment or discrimination complaint by providing a negative reference to a subsequent employer. That said, the best way to protect your career is to cultivate a broad network of people inside and outside of your organization who are familiar with your work and the value you bring: clients, unofficial mentors, peers in other parts of the organizations, folks in the nonprofit sector you’ve worked with as a volunteer, leaders in other divisions. The stronger your network, the less vulnerable you are to retaliation, because you won’t have to rely on a recommendation from someone with an axe to grind. I’m someone who has knowledge of unethical and illegal hiring and harassment activity at one particular company. Do your experts have any advice on how to negotiate my rights and obligations? Segal: I take the ethical rules as an attorney very seriously, so I need to make clear that my answer should not be construed as legal advice. Having said that, I can suggest three options. First, if the case involves harassing conduct, although the employee has no obligation to do so, they may wish to let the person making them uncomfortable know of their discomfort. Consider saying: “When you do X, it makes me uncomfortable. Please stop.” Generally, it is recommended that the other person respond: “Thank you for letting me know. I won’t do it again.” The second option, available in all cases, is for the employee to file an internal complaint; the employee should pick the contact person identified in the complaint procedure with whom they are most comfortable. Most complaint procedures provide, or at least they should provide, employees with multiple options in terms of to whom they may report concerns. The third option is to go external. This may include hiring a lawyer to write a letter on the employee’s behalf, filing a charge with the appropriate government agency, or even filing a lawsuit (where the law does not require that an administrative charge be filed first with a government agency). On this issue of harassment, federal law requires that an employee file an administrative charge first; in contrast, some state and local laws allow the employee to go into court without filing an administrative charge first. While there are myriad options, there is one constant: The employee cannot be retaliated against in any way by anyone for raising good-faith concerns about discrimination or harassment. Protections for raising concerns about conduct perceived to be unethical are not as clear under the law, but many employers provide protection from retaliation in their codes of conduct or whistleblower or other policies or procedures. Providing protection is in an employer’s self-interest, even if there is not a legal mandate. While not every ethical concern will have merit, employers want to foster a culture where employees feel comfortable raising ethical concerns without fear of retaliation. After all, some concerns will have merit, and the complaint helps the employer correct the ethical wrong. Recently, a coworker was fired after being accused of sexual harassment. Our HR keeps these things under wraps (doesn’t disclose the who, what, where, etc.), so none of us know the details. But this coworker stops to talk with me about the incident when he sees me on job sites. I realized today, the accuser would occasionally wear to the job site inappropriate attire for her tool room job, including perfume and makeup. My question: At what point should a coworker, subordinate, etc., be confronted for doing such? David G. Smith, PhD , is a professor of sociology in the Department of National Security Affairs at the United States Naval War College. He is the coauthor of Athena Rising: How and Why Men Should Mentor Women: First, we have to ask ourselves if her attire is a problem for her or for others. Certainly, most organizations have formal and/or informal policies and norms related to work attire. If she is not following formal policy, then it would be appropriate for someone to discuss this with her. However, in many cases, women are judged by a masculine standard that has nothing to do with them or how they do their jobs. In all likelihood, her choice in attire is something that makes her feel professional and competent in the workplace. Also, women are often subject to perceptions that if they behave (and dress) in a way that highlights their femininity, then they are not competent at doing their jobs and receive negative feedback from others. However, if they dress more masculine, then they receive negative feedback for not being more feminine — the classic double bind. If her attire is not in violation of policy, maybe you need to take a moment to reflect on your discomfort, and not place it on her. My colleague was fired after a sexual harassment investigation, but I always had a really good experience working with him and I think he’s really smart. Can I be a reference for him? Segal: As an initial matter, employees should check their employer’s reference policy before giving any reference. Some employees try to avoid restrictions in this area by saying it is a “personal” reference. That could lead to “personal” liability, as the answer to this question demonstrates. Generally speaking, neither employers nor employees have a duty to provide a substantive reference. However, if a substantive reference includes a misrepresentation, then the employer and/or employee may be liable for the reference. In this case, the argument would be that, by not addressing the misconduct, the provider of the reference omitted a material fact that the potential employer would have wanted to know, and, as such, the omission was a misrepresentation. If the employee for whom the reference was given engages in harassing conduct at his new employer, the new employer may have a claim for damages arising out of the harassment against the prior employer and/or employee who provided the glowing reference without disclosing the material problem. I’m aware of an international bill of workers’ rights (something like that) signed by 60 countries which stipulates that no worker can be fired without just cause. The U.S. did not sign the agreement. So workers in the U.S. can be fired for nefarious reasons including failure to provide sexual services to superiors. Why is there no talk about changing this? Chai R. Feldblum is a commissioner at the U.S. Equal Employment Opportunity Commission: It is correct that there is no federal law saying that employers must have “just cause” when they fire an employee. The default employment status for most workers in the United States is what is called “at will.” That means the employer can fire an individual for any reason, with cause or not. There are some exceptions to this rule, and workers are always able to secure better protections individually or collectively through contracts if they are able to, but the general rule is that employers can hire and fire as they choose. However, there are federal and state laws that prohibit the use of some reasons for firing an employee. Any decision to terminate an employee (or take any employment action) that is based on race, sex, national origin, color, religion, age, disability, or genetic information is expressly prohibited by federal law. So, for example, if an employer fires an employee because she does not provide sexual services to a superior, that is a clear violation of federal sex discrimination law, and the employer can be sued for doing so. The fact that the U.S. has not signed the broader international bill of workers’ rights will have no impact on the rights the employee would have under federal law. If you’ve experienced or witnessed harassment, should you go to HR first? Why or why not? Patty McCord is the founder of Patty McCord Consulting and the former chief talent officer at Netflix: The most effective first line against sexual harassment is to confront it in the moment. If you experience someone behaving inappropriately — let’s give an example of someone not making eye contact but looking at your body — an appropriate response in that scenario might be to say, “Hey, could you look me in the eye when we have a conversation? This is making me uncomfortable.” The other person might say, “Oh, God, I didn’t even realize I was doing that. I’m so sorry.” Then they won’t do that again. And that is incredibly effective. We don’t have the courage to say these things because we don’t practice. It’s too hard. It’s too uncomfortable. It’s too weird. And in some cases there’s a power dynamic. If you have a male coworker who’s in charge and consistently does this, and every woman feels threatened, then you have to tell someone else. Now, you have to believe that whoever you tell is going to hear you. Ideally, you have an HR organization that you trust, that you believe listens to you, and that will take appropriate steps to remedy your complaint. It’s perfectly fine to go to HR. It’s also perfectly fine to go to anyone in management; HR is part of that team. What I don’t want to see happen as a result of the #MeToo movement is that we make this HR’s problem. It’s not. You should be able to go to anyone in charge and tell them what the situation is, and they should all feel equally responsible for making a culture where people feel they are treated equally and fairly. Sexual harassment is against the law. There’s a reason for this law. And so anyone who manages other people is responsible for upholding that law. In fact, forget management, we’re responsible to each other. HR is legally responsible for the follow-up, that is true. But this doesn’t just fall to HR. Everybody should be responsible for this. Everybody. I work for a “mom and pop,” or a small business. There is no HR. What do I do? Karen Firestone is the president and CEO of Aureus Asset Management, a firm that serves as the primary financial adviser to families, individuals, and nonprofit institutions. She’s the author of Even the Odds: Sensible Risk-Taking in Business, Investing, and Life (Bibliomotion, April 2016): If no one at your firm has discussed harassment policies, it is worth asking whomever in management you feel most comfortable with, male or female, whether there is one executive who would be responsible for addressing inquiries about office behavior, should one arise. You could also ask if the company has a written sexual harassment policy, which may or may not describe to whom you would lodge your complaint. Just inquiring about the subject will make the management recognize this is a topic that can’t be ignored despite the small size of the enterprise. If there were only men at the top, and you didn’t know who would be the point person regarding sexual misconduct, to whom would you turn? I would again pick the highest-ranked person at the company with whom you feel comfortable. If you have already told a colleague about the incident, and you are worried about whether an accusation would be too difficult for you to describe under pressure, set up the meeting together. Put in writing what happened and send it by email to that executive, so there is a record. Hopefully, the managements of small businesses will handle such cases with the degree of understanding and respect they deserve. It’s worth noting that in my recent survey of 57 small businesses, I concluded that HR is not necessary to root out and prevent sexual harassment. But leaders need to: (1) be conscious of the factors that lead to a toxic work culture, such as having a predominantly male executive staff, layers of hierarchy in power within the organization, and indifferent responses to previous allegations; (2) establish clear policies outlining what constitutes sexual harassment, which behaviors will not be tolerated, and what employees should do if they see or experience misconduct; and (3) enforce these rules by designating clear roles for people within the organization. At my company I have told everyone they should come to me or my second-in-command immediately with any complaint. Should this ever happen, I would try to understand the incident by interviewing everyone involved, and I would likely ask the alleged harasser to take a leave until we understand the entire situation. Then I’d try to resolve the problem internally. If that was impossible, we would seek outside counsel. Finally, having women in top management lowers the risk of sexual harassment at work, but does not eliminate it, of course. How do we empower individuals within companies to report harassers when their HR/legal/etc. won’t or can’t act? Alton B. Harris is a law partner at Nixon Peabody and Andrea S. Kramer is a law partner at McDermott Will & Emery. Both have worked for more than 30 years to promote gender equality in the workplace. Husband and wife, they are the coauthors of Breaking Through Bias: Communication Techniques for Women to Succeed at Work: Even in the best-intentioned companies, HR or the legal department may not be the best place to assign responsibility for receiving and investigating allegations of sexual harassment. These departments have multiple responsibilities, some of which may make it difficult for them to carry out a thorough, let-the-chips-fall-where-they-may investigation. In addition, personnel in these departments might have personal relationships with one or both of the persons involved or have input into their future performance evaluations. To truly empower employees to report harassers, therefore, the first step in our view is for a company to use a third-party complaint investigator that has no other relationship with the company. The independent investigator would receive all harassment complaints; conduct a prompt, thorough, and fair investigation of each one; ensure confidentiality to the extent possible; and report its unvarnished findings to senior management. Beyond the use of such an independent investigator, effectively empowering employees depends on their confidence in senior management’s commitment to having a workplace free of inappropriate sexual behavior. This means employees must rightly believe senior management will discipline perpetrators without regard to their status within the organization and protect the complainant against retaliation and adverse career consequences. Senior management’s job in this regard is to make this commitment crystal clear. How do we get all company leadership to accept that they need to lead the charge on changing the culture around sexual harassment and discrimination in their organizations, versus treating this as just another corporate risk? Harris and Kramer: Company leadership is rightly concerned about the reputational risk posed by allegations of sexual harassment. But of far greater concern should be the cultural climate of the organization’s workplace. Workplaces that are rife with gender bias, incivility, and inappropriate sexual behavior are not only far more likely to experience sexual harassment, but also far more likely to have high rates of personnel turnover, few women in senior management, and low levels of innovation and creativity. Once senior managers understand the true costs of a workplace climate unwelcoming to ambitious women, there’s a greater chance that they will lead the charge to change that climate. It is the difference between playing defense and playing offense: Treating sexual harassment solely as a business risk is an expensive defense strategy. Accurately assessing workplace culture and acting to rid it of bias, incivility, and unwelcome sexual conduct is a cost-effective offense strategy. What does a manager owe an employee if the manager witnesses the employee being sexually harassed by someone who is external to the organization, but far more powerful than the employee is? Say the CEO of Company 1 is visiting Company 2, and while there sexually harasses an employee in front of a Company 2 executive. In an ideal world, that wouldn’t happen, and the executive from Company 2 would try to defend the employee, but the power dynamics make that difficult. What should the executive from Company 2 say to the CEO of Company 1? Segal: This question illustrates the important role of bystanders and of leaders receiving training on their bystander obligations. In this case, if an executive of Company 2 witnesses the objectionable conduct by the CEO of Company 1, the executive should respond in the moment by making clear that the conduct is not OK, so the conduct does not continue and so those around know the executive is not implicitly condoning it. Then the executive of Company 2 should talk privately with the CEO and make clear that the behavior can’t happen again and what the consequences will be if it does. The executive should then report back to the employee and make clear that the company stands behind him or her. If the individual at Company 2 who witnesses the behavior is not an executive, he or she may not feel comfortable, because of the power differential, responding in the moment. However, the person should report the incident to an executive at Company 2, so the executive can speak with the CEO of the other company. In this regard, it is important that the anti-harassment complaint procedure make clear that individuals who are not the direct objects of harassing behavior — but who see, hear, or otherwise become aware of it — can and are encouraged to report it. I use the word “harassing,” and not “unlawful harassment,” because many harassing behaviors may not be “bad enough” to be unlawful but are still unacceptable and inappropriate. Here is one example: An employee makes one sexually suggestive comment. An isolated comment does not necessarily rise to the level of harassment. What is standard HR training for sexual consent and sexual harassment? I started working in software in 1991 and have never received any training. Harris and Kramer: Consent, or lack of it, is central to sexual harassment. Regardless of its nature, workplace sexual activity is not harassment unless it is unwanted or unwelcome. As the EEOC has put it, essential distinctions must be drawn between “invited, uninvited-but-welcome, offensive-but-tolerated, and flatly rejected sexual advances.” HR training has made great progress in drawing these distinctions since 1991. California, for example, now requires all higher education institutions that receive state funds to adopt an “affirmative consent standard” in determining whether there has been mutual consent to sexual activity. Affirmative consent must involve “affirmative, conscious, and voluntary agreement to engage in sexual activity.” Consent cannot be assumed from silence, a lack of protest, or the failure to resist. Most HR training now recognizes that explicit consent must be the precursor to any workplace sexual innuendo, advance, solicitation, or contact. “I thought it was welcome” is never an acceptable justification for unwanted sexual conduct. Is anti-harassment training more effective or less if the presenter is a man? A woman? Smith: The method, content, and targeted audience of sexual harassment training may be more influential in changing the workplace than the gender of the trainer. But there are several social influences and processes at work in terms of the gender of the presenter that workplaces should be aware of. First, being perceived as competent in delivering the training is important. Depending on the content, female presenters may initially be perceived as less competent or qualified because of their gender. Women and men are both susceptible to this unconscious bias. Female presenters inherently know this, and may compensate by working hard to prove themselves — the “prove it again” bias. Second, research shows that when women deliver sexual harassment training, stereotypes are activated that emphasize unconscious biases about women being less competent and having less status. However, in male-led sessions, men found women to be more likable. Similarly, recent research demonstrates that when women emphasize diversity-valuing behavior, they are penalized; largely because they are perceived as being self-interested. What’s the best way to protect women and educate men? I’m a man; is there something I can do? Smith: I think we need to move to a broader culture of inclusion and alliances. In this moment, one of the many challenges in our society is creating a workplace where men feel uninhibited in raising their voices and engaging one another in a conversation about who they are and are not. For example, when it comes to addressing sexist behavior at work, men are less likely to respond to it because they may feel it is not their place. Men are also more likely to overestimate their male peers’ level of acceptance of sexism, not saying anything because they think they’re the only one who found it offensive. In our research on cross-gender mentoring relationships, we discuss “reluctant male syndrome,” a collection of reasons men avoid working with and mentoring women. For example, one reason relates to the anxiety that some men experience when considering a professional relationship with a woman at work. Growing up, men have been given scripts for relationships with their mother, sister, wife, girlfriend, and daughter — but not for a professional, nonsexual relationship with a woman at work. To cope with their anxiety, sometimes men rely on apparently positive social scripts (for example, knight in shining armor) that ultimately sabotage or undermine women at work. When in a safe and more vulnerable space, men will talk about these concerns and challenges with each other. The organizational challenge is how to create these spaces and opportunities where men can engage and support each other in these conversations. Finally, motivation to deliver this content and have these conversations can be found in several places. Some men find it compelling to relate the issues that women have at work to an important woman in their life (wife, daughter). We often find men are strong, outspoken allies at home and in private, but may need some help or encouragement to be the same at work and in public. Some men are motivated by business or leadership goals. Certainly, the evidence is clear that having gender-diverse senior leader teams and boardrooms positively impacts the bottom-line profits and long-term viability of companies. Male leaders and managers may also find that an understanding of the wide-ranging negative effects of a hostile work environment is all they need to take up this work. And if all this is not enough, men working with and mentoring women in more-gender-diverse organizations have more-diverse networks, increased access to information, and enhanced interpersonal skills. The Big Idea

Work After #MeToo, Your Questions Answered

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