Source: Mark V. Roehling, Labor Law Journal, Vol. 71, Issue No. 2, Summer 2020 (subscription required)
From the abstract: The use of zero tolerance sexual harassment policies is a common employment practice that is both widely advocated and widely criticized. Advocates of zero tolerance policies describe them as a best practice that is “essential”, “the only way forward”, and something companies should be “forced to do”. On the other hand, critics of zero tolerance policies, including the EEOC Select Task Force on Harassment, characterize them as misleading efforts that are not only ineffective in preventing sexual harassment, but also potentially counterproductive.
What explains these sharply contrasting assessments? What are the key factors that should be taken into account in evaluating the conflicting assessments and making decisions regarding the adoption and implementation a zero tolerance sexual harassment policy? This article addresses these questions and is organized in four sections. Because the outwardly conflicting assessments of zero tolerance policy are due in part to different uses of the term “zero tolerance,” the first section addresses the different meanings given “zero tolerance.” The second and third sections identify and discuss the potential benefits and potential pitfalls of zero tolerance policies. The discussion in these two sections is interdisciplinary in nature, addressing the potential benefits and pitfalls from both legal and behavioral science perspectives. Drawing on the interdisciplinary assessment of the potential benefits and pitfalls, the final section provides recommendations intended to assist employers, and the lawyers and human resource professional who advise, make well-informed decisions regarding the adoption and effective implementation of zero tolerance sexual harassment policies.
From the abstract:
Many have hailed the #MeToo Movement as a turning point in the way this country discusses sexual assault and sexual harassment, but when looking at the #MeToo Movement through the lens of Supreme Court nominations, it is unclear whether the impact of the Movement will be as far reaching as some imagine. The hearing of Anita Hill, which came before the #MeToo Movement, and the hearing of Dr. Christine Blasey Ford, which came after the #MeToo Movement, perhaps demonstrate that the #MeToo Movement has reached its limit culturally and now institutional change must be the focus in order for the goals of the #MeToo Movement to be fully realized. Looking to the hearing of Professor Hill to analyze what we should have learned, the #MeToo Movement to assess what we thought we learned, and the hearing of Dr. Ford to recognize what we still have to learn about survivors of sexual assault, this Article begins to develop creative solutions to ensure that our institutions change as our society changes, with the ultimate goal of creating a society where no one else has to say #MeToo.
From the abstract:
With the growth of the #MeToo movement since October 2017, more than 200 prominent male executives have lost their jobs. Some pushback has occurred as many of these executives have asserted their behavior was not inappropriate because their acts were consensual. Essentially, this argument requires companies evaluating this behavior to find nothing wrong when executives use their vast power and influence to have romantic and sexual relationships with their subordinates who do not say “no.”….
The trend is up for EEOC class-based sexual harassment investigations. Jayde Ashford Brown, with Hunton Andrews Kurth, reviews recent cases and offers tips on how employers can establish an anti-harassment workplace.
….Training isn’t the only place most sexual harassment programs fall short. Lilia Cortina, a professor of psychology, women’s studies, & management at the University of Michigan, has found that many organizations flounder in how they handle complaints. Cortina’s research reveals that companies’ formal grievance systems fail for four reasons: they are rarely used; people who file complaints regularly face retaliation; retaliation has negative long-term career and health consequences; and formal complaints rarely lead to the removal of the harasser. Filing a complaint can do more harm than good, if it does anything at all.
Given that current efforts to address workplace sexual harassment are clearly not working, what does an effective program look like? Cortina said the starting point has to be a commitment from leadership to meaningful cultural change, rather than checking a box or looking for a quick fix….
…..When harassment is identified, it’s important that discipline is consistent and does not give the appearance of undue favor. For example, the EEOC found that companies that successfully created a culture of non-harassment “acknowledged and owned” complaints, instead of attempting to bury them, and were willing to hold high-ranking and highly-valued employees accountable. In addition, studies show that harassment thrives in workplaces where there’s a stark power imbalance between men and women, so hiring and promoting more women, and compensating them equitably, can undermine the root causes.
There may always be people who abuse their power and act badly in opportunistic situations, but that doesn’t mean organizations are powerless to stop them…..
For 30 years, we’ve trusted human-resources departments to prevent and address workplace sexual harassment. How’s that working out?
…The experience left me with a question: If HR is such a vital component of American business, its tentacles reaching deeply into many spheres of employees’ work lives, how did it miss the kind of sexual harassment at the center of the #MeToo movement? And given that it did, why are companies still putting so much faith in HR? I returned to these questions many times over the course of the following year, interviewing workplace experts, lawyers, management consultants, and workers in the field.
Finally, I realized I had it all wrong. The simple and unpalatable truth is that HR isn’t bad at dealing with sexual harassment. HR is actually very good at it…..
…..But the real reason many workers don’t love human resources is that while the department often presents itself as functioning like a union—the open door for worker complaints, the updates on valuable new benefits—it is not a union. In a strong job market, HR is the soul of generosity, making employees feel valued and significant. But should the economy change, or should management decide to go in another direction, HR can just as quickly become assassin as friend…..
….If employers judged HR departments by their ability to prevent sexual harassment, most would have gotten a failing grade long ago. What HR is actually responsible for—one of the central ways the department “adds value” to a company—is serving as the first line of defense against a sexual-harassment lawsuit. These two goals are clearly aligned, but if the past year has taught us anything, it’s that you can achieve the latter without doing much of anything at all about the former…..
Alicia Garza’s phone never stops ringing. The Black Lives Matter co-founder now leads Supermajority, a women’s political-training organization, along with a roster of female organizers including Cecile Richards, the former Planned Parenthood Federation of America president. The two have dedicated their efforts to building women’s political power in the U.S., a mandate that means near-constant communication with interested folks across the country. ….
In every field — business, politics, science, tech, and sport — women are breaking barriers in unprecedented numbers. Women CEOs frequently outpace their male counterparts in delivering profits, women are at the forefront of scientific research (CRISPR, anyone?), and women coaches exceed expectations for leading teams … of men. As more women have taken up posts in DC than in any time in our history, are women experiencing a “moment,” or have the pressures for gender equality and compensation finally achieved results? Remarkable leaders from diverse backgrounds share their views on what it means to break barriers.
In the post #MeToo era, the potential to shift women’s political, economic, and philanthropic power is profound. How will this activism be harnessed to fundamentally change our nation’s course? What is the agenda for women going into the 2020 elections? Can a broader consensus in support of women’s issues be mobilized? Fundamental concepts of diversity and inclusion are being crafted in whole new ways by corporate leaders who are responding to cultural pressures and market opportunities. Where will this momentum for an inclusive and diverse agenda lead and who will lead it?
From the press release:
Social justice movements, such as the Fight for $15, #MeToo, and striking Uber drivers, rely on workers to come forward to assert their rights—but workers who dare challenge an employer’s policies or misconduct know that they will almost certainly face retaliation. Even highly-paid Google workers have been forced to protest retaliation following a mass walkout criticizing Google’s handling of sexual harassment. A new NELP survey of laws in all 50 states and the District of Columbia shows, however, that state laws overwhelmingly fail to provide workers with essential retaliation protections.
In Exposing Wage Theft Without Fear: States Must Protect Workers from Retaliation, NELP offers a first-of-its-kind analysis focusing on how state laws protect—or fail to protect—workers when they challenge wage theft by lodging complaints with employers or government agencies, filing lawsuits, or engaging in public actions, for example…..
…. Numbers released by the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing civil rights laws against gender, race, religious, and other forms of workplace discrimination, show that even as the overall number of complaints received is down 9.3 percent from 2017, complaints about sexual harassment rose 13.6 percent over the previous year. ….
Number of sexual harassment charges filed with the EEOC jumps 13.6%
Retaliation was again the type of discrimination charge most frequently filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2018, followed by allegations of sex, disability and race discrimination, the agency reported.
Among the 76,418 total workplace discrimination charges the agency received the last fiscal year, 39,469 were for retaliation, accounting for nearly 52 percent of all charges filed. Discrimination based on sex was the second most frequently filed charge, with 24,655 charges received…..