#MeToo – Insights From a Former Judge on Sexual Harassment

Since October 15, there have been over 77 million posts, reactions and comments on Facebook about #MeToo. The stakes just got a lot higher for employers.
I decided and mediated harassment and retaliation cases during my fifteen-year judicial career. I now train employers to prevent and appropriately handle allegations of harassment when they arise.
Reflections:
  • The most important fact about harassment is that 75% of those who speak out are retaliated against by their employer. #MeToo illuminates the raw truth of this number. As a judge I saw far more actionable retaliation than harassment, and the EEOC receives more claims of retaliation than any other.
  • As a direct result, only 30% of harassment victims speak up and only 6%-13% file a formal claim. It is likely the #MeToo movement will increase those numbers, as victims share their stories with others at work and come forward as a group instead of individually. Corroboration by just one other employee will tip the scale of credibility in the employee’s favor at the investigation stage and at trial.
  • To end the harassment, organizations must end the culture of retaliation. In recognition of this fact, the U.S. Supreme Court has defined retaliation broadly to include any action that would “dissuade a reasonable worker from making or supporting a charge of discrimination.” Actionable retaliation can thus include: a forced change of shift; exclusion from important meetings; loss of training opportunities; transfer to less desirable job duties; and, of course, demotion or termination. Unfortunately, retaliation also comes in more subtle but psychologically damaging forms of humiliation and ostracism, as well as long-term damage to career prospects.
  • Judges and juries know retaliation when they see it. Juror research shows that American jurors believe lower level employees over executives at a rate of 77% to 23%. In 2010, 82% of juror-eligible Americans believed that if a company could benefit financially from lying, it is probable it would do so. (Persuasion Strategies, “National Jury Survey” 2010). After #MeToo and recent news reports, the public is even more likely to believe accusers and to punish bad actors.
Recommendations:
  1. Prepare for More Complaints and Hire a Great Trainer.

    The scope and power of #MeToo virtually assures that more victims of harassment will come forward. My Sexual Harassment Training and recommendations below are designed to help you get ready.

  2. Leadership Must Decide to Protect Accusers.

    As a judge, I observed that middle managers engage in harassment, discrimination, and retaliation only when leadership is willing to accept it. It is true that tone at the top establishes tone in the middle. Therefore, to change organizational culture, leadership need to call each other out on inappropriate behavior first. One, “you know we don’t say that here” among friends can reset the tone of a leadership team quickly. Leaders must also provide political cover to those who make the “tough calls”, i.e. anyone who speaks out or holds others accountable for illegal behavior. Although these shouldn’t be tough calls, the reality is that they are. #MeToo may help to change this calculation. 

  3. Punish Harassers.

    Upon a finding of harassment, employers are required to take “prompt and effective remedial action” designed to stop the harassment. As recent news reports and #MeToo illustrate, this seldom occurs. Once leaders commit to impose salary and bonus penalties, demotions, and terminations on bad actors, regardless of their purported value to the organization, the harassment will stop. Those who retaliate must be held equally accountable. 

  4. Hold HR Accountable for its Enforcement Role.

    As a judge, I observed that some Human Resource personnel become overly aligned with management, to the detriment of holding management and leadership accountable. While HR should be a full strategic business partner (and member) of the executive team for purposes of human capital management, there must be a commensurate, explicit understanding that HR will take all complaints seriously, initiate objective third party investigations, impose penalties that end the harassment, and stop retaliation. HR staff who are uncomfortable in this enforcement role, and there are many of them, should not be in it.

  5. Upgrade Training to Encompass Cultural Change and Bystander Interventions.

    Anti-harassment training has historically focused on risk management, and was done primarily to provide an affirmative defense to claims. Instead, it can be a collective exploration of how we all hold unconscious yet powerful biases (not an exercise in blaming), what everyday actions may constitute micro-aggressions or harassment, how we can elevate everyone’s work experience by using micro-affirmations, and how to use ally behavior and bystander interventions to stop harassment. Zero tolerance for retaliation should also be highlighted. Supervisors, managers, and leaders should be evaluated and rewarded on these behaviors.

  6. Use Objective Third Party Investigations.

    Unbiased investigations by highly qualified independent professionals are the linchpin of successful responses to harassment allegations, and the cornerstone of risk management. Internal investigations usually either lack objectivity, or are perceived as such. A thorough, impartial investigation and report will insulate the employer from potential lawsuits by deep-pocketed, terminated bad actors. And, if additional victims speak up in the course of these investigations, experienced investigators will be prepared to handle them. #MeToo increases the chances of this occurring significantly.

In summary, #MeToo is a potential legal game changer. It’s also a wake-up call for employers that should not be ignored.
For state-of-the-art training or unassailable investigations, contact Mary McClatchey at 303-229-3597.

*Compliance reporting data are taken from the EEOC’s June 2016 Report of the Select Task Force on the Study of Harassment in the Workplace