© 2018 The Texas Lawbook.
By Natalie Posgate
(Jan. 23) – With recent and unprecedented revelations of sexual harassment continuing to dominate the news, many companies are reevaluating whether they have the proper protocols to handle any incidents that occur in the workplace.
A recent webinar on the subject hosted by Locke Lord suggests they have their work cut out for them. While investigating claims is important and imperative, preventing sexual harassment in the workplace will require changes in cultural norms that often originate outside the workplace.
The hour-long webinar, which featured firm experts as well as prominent national authorities, was aimed at c-suite executives, managing directors, executive vice presidents, in-house counsel and human resources professionals.
“It’s not just a workplace issue – you have to view it as a societal issue that affects the workplace,” said Richard Glovsky, a partner in Locke Lord’s Boston office who is the co-chair of the firm’s labor & employment practice.
The webinar reviewed the elements of a strong sexual harassment policy, employee training, and the basic steps involved in any investigation by management of sexual harassment complaints.
One of the underlying themes on all the topics was the issue of employees not reporting incidents in the first place. The experts broke down why this occurs and what employers can do to improve reporting.
Dr. Jennifer Freyd & Betrayal Trauma
Dr. Jennifer Freyd is a psychology professor at the University of Oregon who is an expert on “betrayal trauma,” a term that she adopted to describe the phenomenon of abuse or mistreatment someone undergoes by a person or institution they trust and depend on, as well as “betrayal blindness,” which involves the victim ignoring the abuse.
Betrayal trauma and blindness can occur in a multitude of situations, one of them being sexual harassment in the workplace, Freyd said. For instance, an employee being sexually harassed by her or his boss, and choosing to ignore it and not report the behavior for fear of losing his or her job.
“When sexual harassment happens, protection and attachment collide, especially when you need to be loyal to someone,” Dr. Freyd said.
She said in the workplace, sexual harassment victims can be prone to institutional betrayal, which is wrongdoings by an institution (the victim’s employer) upon individuals that are dependent on that institution (employees). She said this kind of betrayal “causes harm over and above personal betrayal.”
A couple ways for workplaces to prevent institutional betrayal, she said, include response and self-study: Respond sensitively to an employee’s disclosure of sexual harassment; but also gauge how your company or firm is doing.
“Ask employees on a regular basis how the company is doing on making it easy to report,” Dr. Freyd said. “Ending sexual violence and harassment is a challenge and will take time and efforts… [but] we can end institutional betrayal quickly.”
Michele Landis Dauber & ‘Bro Culture’
One major reason workplace sexual harassment occurs is because of the ‘bro culture’ – or, in non-millennial terms, an aggressively masculine business culture that tolerates fraternity-like behavior – that is prevalent in many offices, said Michele Landis Dauber, a law and sociology professor at Stanford University.
Bro culture is often seen in heavily male-dominated industries, such as technology and investment services.
To understand bro culture, she said, you have to observe the bros in their original environment at college campuses.
Daubner used her own employer as an example. At Stanford, she said 43 percent of women undergraduates experienced sexual assault (yet only 2.8 percent of them are reported) and a higher amount – 79 to 83 percent – experienced some form of sexual harassment while in college, such as being repeatedly asked on dates or for sex, receiving unwanted inappropriate photos, etc.
“Numerous studies have found that fraternity members are three times more likely to commit sexual assault than non-fraternity members, and sororities are 74 percent more likely to experience it,” Dauber said.
Aside from the copious amounts of alcohol available at frat parties, fraternity members’ tendency to commit sexual assault or harassment derives from the rule-breaking mentality that their houses foster.
Though most fraternities’ national chapters may have sections in their rulebooks that ban hosting parties and serving alcohol, they exercise little day-to-day control of their local chapters, Dauber said.
In addition, universities have the tendency to be lenient on fraternities due to the hefty financial support many fraternity alumni provide.
Dauber cited the infamous Stanford rape case involving student athlete Brock Allen Turner assaulting an unconscious woman behind a dumpster. Dauber, who is leading the bid to recall the judge who sentenced Turner to only six months of prison, said the fraternity party that hosted Turner and his victim received “very light sanctions.”
“Fraternities work as pushing boundaries, so it usually starts out small – noise violations, alcohol violations… but before you know it, universities are accepting larger deviations,” Dauber said. “We’re learning that what these young men are having is impunity. It makes fraternities even more attractive to join because impunity is viewed as status.”
As a result, Dauber said fraternity men can carry over the same attitude when they begin their careers, since they were “trained to believe authority figures do not exactly expect them to follow the rules, and wink at rule violations.”
Dauber said companies need to take two things into account: 1) that many of their female employees have likely already experienced sexual harassment or assault, and may be hesitant to report anything that happens at work due to history of the ‘bros’ of bro culture avoiding punishment, and 2) that many male employees have experienced impunity themselves or watched it in college.
To address the second point head-on, Dauber suggests that employers do not tolerate any form of rule-breaking, however small it may be (such as violating expense account policies) because doing so sends a message that employees could get away with more.
Preventing and mitigating workplace sexual harassment
The one-two punch method of dealing with sexual harassment and hopefully preventing it from occurring in the first place (or, at the very least, repeat offenses) is to implement thorough policies and training, say Locke Lord labor & employment partners J. Michael Rose and Kimberly Williams.
One of the key objectives in a strong sexual harassment policy is to foster an environment that will encourage employees to report incidents when they occur, said Rose, who practices in Locke Lord’s Houston office.
The policy needs to provide “assurance that employees who make complaints or participate in an investigation will be protected against retaliation, assurance the employer will protect the confidentiality of complaints to the extent possible,” and a guarantee that complaint process will provide a “prompt, thorough and impartial investigation,” he said.
Beyond implementing a comprehensive sexual harassment policy in their employee handbooks and their websites, Rose recommends that employers also “regularly and clearly” communicate their policy to their employees.
“Especially given the attention this has received in the national landscape, make it clear you want to prevent it (sexual harassment),” Rose said.
In addition to effectively communicating sexual harassment, Williams recommends that employers provide comprehensive training sessions that involve every tier of employee from entry level to the c-suite executive.
One efficient way of doing this is getting managers and c-suite executives involved in the discussion and ask questions during sessions in which non-managerial employees are being trained, which will “show there’s support and buy-in” from company leaders, said Williams, a partner in Locke Lord’s Dallas office.
Training topics Williams suggest including are:
• Encouraging reporting incidents and providing different avenues for reporting. For example, employees should be aware that they can report incidents to someone else besides the supervisor directly above them, which is helpful if the incident involves the supervisor;
• A guide for how co-workers can get involved in reporting, such as offering to go with the victim to HR to report the sexual harassment;
• Providing real life examples of sexual harassment that are both obvious and not obvious; and
• Providing examples of respectful behavior, such has how to appropriately praise someone’s work
The most important starting point with training, Williams said, is addressing the issue of sexual harassment at the c-suite first.
“Make sure leadership understands the issue,” she said. “They need to understand that it is more than just a policy and [the company intends] to train on why the issue is important and how it affects their workplace,” Williams said.
Plan B: Investigations
If policies and training fail to mitigate any sexual harassment incidents, Chicago Locke Lord partner Kevin Kelly recommends conducting a proper investigation.
“If your investigation is faulty or incomplete, you’re not going to get to the truth, which is the most important part,” he said.
Kelly noted several steps that should be part of an investigation:
1. Determine who will conduct it – whether it’s in-house or done externally through an outside lawyer, for example. Whoever investigates, make sure he or she is properly trained.
2. Create a plan. Outline questions you will ask of various witnesses.
3. Conduct the interviews, and make sure to always interview the accused for his or her side of the story in addition to whoever brought forward the complaint. Make sure to thoroughly document the interviews so that if someone later changes their story, you have evidence to suggest otherwise. If you don’t conduct thorough interviews,” Kelly says. “They’re less likely to report if they think you won’t do the investigation properly.”
4. Consider other evidence. Review any emails, text messages, recordings or camera footage that will help you get to the truth.
5. Follow up on evidence that you’ve uncovered. You may have a plan of attack going into the investigation, but then you may learn new information in interviews that you need to consider.
6. Analyze your decision and whether or not one person is telling the truth.
7. Prepare a report that summarizes the evidence in detail. Kelly says this is particularly useful should the matter ever result in litigation. That way, “you can explain why you did or didn’t take action on the facts,” he said.
© 2018 The Texas Lawbook. Content of The Texas Lawbook is controlled and protected by specific licensing agreements with our subscribers and under federal copyright laws. Any distribution of this content without the consent of The Texas Lawbook is prohibited.
If you see any inaccuracy in any article in The Texas Lawbook, please contact us. Our goal is content that is 100% true and accurate. Thank you.