In the wake of the Uber and Harvey Weinstein revelations, organizations like the California State Senate have been calling in the experts to conduct investigations and change culture
They’re an organization’s first line of defense against chauvinism.
As a seemingly ceaseless line of workplace harassment survivors speak out about their harrowing experiences, America is engaged in some soul-searching. The Hollywood-Manhattan media complex is a particularly egregious offender: over 300 women—including star actresses Selma Blair and Rachel McAdams— have accused Academy Award-nominated director James Toback of misconduct. More than 60 females have alleged harassment by the disgraced movie powerbroker Harvey Weinstein. But the tentacles of misogyny also extend to Silicon Valley and state capitols, where women engineers and politicos have been newly overpowered to share. The list will no doubt go on.
So when an organization’s leadership decides to clamp down, their first call is often to a consultant specializing in sexual harassment claims. These individuals may be human resources specialists or attorneys, and sometimes both. Both Uber and Fox News hired lawyers (former U.S. attorney general Eric Holder and Manhattan power attorneys Paul, Weiss respectively) to lead investigations after misconduct claims were made against employees. The California State Senate has engaged both a law firm and a HR company to investigate after an open letter from over one hundred women protesting their mistreatment.
Their costs vary widely depending on geographical location and the complexity of the work consultants are asked to undertake: a top partner at Holder’s law firm, for instance, reportedly bills almost $900 an hour, while an anti-harassment course conducted online may cost as little as $25 per employee trained. (Fox News parent 21st Century Fox shares common ownership with Moneyish publisher Dow Jones.)
Oftentimes, these consultants are asked to help set company policies and host training sessions. In a post-Weinstein era though, corporations are increasingly aware that it’s no longer enough to merely check a box. “There’s been a shift based off the high profile cases,” says Lori Rassas, a HR expert and adjunct faculty at Fordham University School of Law. “For clients to protect themselves, they need to make sure they have living, breathing policies.”
Sometimes, the steps are simple. They include hosting workshops, getting supervisors to frequently remind their charges of their rights and responsibilities, instituting anti-retaliation policies and clarifying for everyone what the harassment investigation process looks like. “To empower the victim, they should know what HR is going to do. Who will know about their complaint?” Rassas says, adding that it’s crucial that a victim, for instance, not be required to report their abuse to their abuser. “If they know, they don’t fear.”
More challenging is changing the culture of a company. “It’ll never happen unless you get the impetus from senior leadership,” says Susan Strauss, a Minneapolis-based HR professional. “It’s not just buy-in but they’ve got to be champions of it.” This means ensuring managers exemplify good behavior themselves, and also training them to spot telltale signs of sexual harassment, so that they know when and how to intervene. “How do managers make sure that they’re seeing harassment, especially those more subtle and nuanced kinds?” Strauss says. “What words do you use to get someone who makes dirty jokes or asks their colleague out multiple times to stop?”
Occasionally, consultants may be called in to counsel serial harassers. This isn’t as difficult as it sounds: people may be unconsciously boorish and just need a quick reminder that there’s a difference between saying “Hey, I like your outfit” and “Heyyy, I like your outfit” with a lecherous glare, says Strauss.
That said, it’s key not to personally attack such bullies, since the professional aim is to merely reform their behavior. “I’ll tell them that you may have certain beliefs about women and I’m not here to change that,” says Strauss, who may have for weekly check-in sessions with such clients for several months at a time. “But your beliefs are exemplified in your behavior and we need to change that.”
These processes are important because they can help nip the problem before it grows into a full-fledged legal matter. Indeed, workplace experts say that the most serious offenders often escalate from lesser crimes. “Don’t wait until it’s problematic,” says Rassas, author of “The Perpetual Paycheck.” “If people come forward earlier, it’s a win-win for everybody. You can resolve it with training before it rises to another level.”
Perhaps the most difficult part of the job comes when consultants are asked to conduct harassment investigations. Similar internal investigations conducted at colleges have been the subject of withering scrutiny, partly because of the impact of a “guilty” verdict on an offender’s reputation—though defendants don’t get the protections they do in a criminal court. The standard for a conviction in such matters is merely a “preponderance of evidence”—i.e. 50 + one percent likelihood—rather than having to prove guilt beyond reasonable doubt.
On the other hand, there’s also the fact that sexual harassment incidents are often hard to prove because they tend to occur in private and may blur the lines between playful chitchat and something more sinister.
Since these consultants play prosecutor and judge—the recommendations they submit often carry great weight—it’s key that they “approach incidents with an open mind,” Rassas says. “You don’t assume the accused did it and you have to be unbiased to the fact that things may be inappropriate, but not necessarily rise to sexual harassment.”
Such investigations often consist of two steps. First, establishing that the incident did occur. Strauss will typically interview the accuser, the accused and any witnesses, sometimes for up to 60 minutes at a time. She then digs into the involved parties’ personnel files to see if there’s a pattern. There’s significant subjectivity at work here: the investigator also has to decide if the involved parties are credible, even when there may be nefarious motivations to lie.
Then, they have to determine if such behavior violates company policy or potentially, the law. (Title VII of the Civil Rights Act of 1964 protects individuals from a hostile work environment, a definition which has been expanded to include harassment.) Strauss may go onto the Equal Employment Opportunity Commission’s website to study bureaucratic guidance, as well as rely on past case law. Then she has to provide not just an opinion, but also a rationale for it.
“It sounds easy but making a determination of who is credible is not,” she says. “It’s not just about your gut feeling.”
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