Bloomberg Law
Dec. 7, 2017, 7:04 PM

How the Sexual Harassment ‘Awakening’ Could Hurt Women if Employers Are Not Thoughtful

Jonathan  Segal
Jonathan Segal
Duane Morris

I. Introduction

We have witnessed a tsunami of sexual harassment and assault charges against people of power in Hollywood, the media and politics. Indeed, as a result of Time magazine’s naming “Silence Breakers” as “Person of the Year,” it is only a matter of time when we start seeing more cases against business leaders in more traditional industries.

There is no doubt that we have reached a tipping point. No credible person can deny the reality of sexual harassment, and no smart or ethical business can ignore it. The silence has been broken, hopefully forever.

However, there are at least four ways that employers/leaders could hurt women in their efforts to prevent and remedy sexual harassment. Fortunately, the risks are largely within an employer’s control so that they also can be avoided.

II. Narrow Definition of Sexual Harassment

In many of the high profile cases, the conduct described is both severe and pervasive, indeed outright horrifying. Many involve touching—in fact, sexual assault.

From these cases, some men (and women) may equate harassment with physical touch. But harassment can occur without physical touch, and conduct far less serious, such as inappropriate comments on appearance, may constitute sexually harassing behavior.

Focusing on the public cases, some men may assume that, because they are not touching women inappropriately, they do not need to take a second look at their own behaviors. If the training of leaders focuses only on the most serious forms of harassment, it may reinforce this misconception.

Leadership training must go beyond the “should-be-obvious” types of harassment and also deal with less severe types of harassing behavior so that men (and women) leave the training with a little less certainty about what is okay than with the certainty they feel when they read about Harvey Weinstein, Kevin Spacey, and others. With less certainty, men (and women) are more likely to be thoughtful about what they say and do.

For example, I spend a lot of time in training talking about hugging. Obviously, it is not okay for a supervisor to give subordinates “Monday morning hugs.” Yes, I had that case (albeit many years ago).

But what about a hug at a company-sponsored social event, such as a holiday party? The answer here is less clear and turns on many factors, such as context, relationship, power and, of course, the nature of the hug.

Employers need to drill down to the granular in these kinds of situations so that men do not view harassment as being conducted only by troglodytes who should be confined to caves. Decent men without bad intent may engage in unacceptable behavior, and we need to make clear the bandwidth of unacceptable conduct is far broader than the high profile cases.

III. Paternalistic Rescuing

In some of the high-profile cases, it appears clear that some men (and women) knew, or at least should have known, of the sexually harassing conduct but said or did nothing. To avoid complicity, men (and women) are pledging to speak up, not cover up, if they witness or otherwise learn of harassing conduct.

Yes, leaders need to respond “in the moment” to harassing behavior so that they are not implicitly condoning it. However, leaders also need to be careful not to engage in what may be heard—or felt—as paternalist rescuing.

Let’s assume, for example, an employee tells a sexist “joke” in a meeting. Knowing that to say nothing is to condone, the leader responds: “The ‘joke” is inappropriate because it may offend Diane and Maura” (the two women in the meeting).

The women are not only “re-victimized” (the object should be the male wrongdoer and not the women.), but the message that may be received is that women are fragile and need men to protect them.

We need to stamp out sexual harassment without suggesting that women need men to protect them. In this example, the leader should say something like: “That ‘joke’ is offensive to me. We will talk about it later privately but I want to make clear to everyone here that sexist comments will not be tolerated.”

In making this comment, the “we” refers to the leader and the man who made the “joke.” The leader should be looking directly at him emphasizing “to me.”

Provide leaders with guidance on how they can respond to harassing conduct in the moment in a way that does not demean women further. In the absence of guidance, paternalism may replace complicity.

IV. Avoidance

Some men are responding to the spate of high profile harassment cases by thinking—even saying—that perhaps the way to avoid harassment claims is to avoid being alone with those who may raise them: women. Avoidance of women is not a strategy for men to avoid harassment claims. There is another word for this strategy: discrimination.

Employers need to infuse into anti-harassment and leadership training programs specific examples of how people with power can engage in safe social inclusion and mentoring. Again, the training must drill down to specific situations and not be simply conceptual in nature.

Let’s do just that. Assume there may be times when a male leader needs to have business dinners with a female subordinate.

He may be inclined to avoid the dinners for fear they may be perceived by her as “dates.” If so, he may deprive her of business opportunities that go with the dinners.

Provide guidance on what factors are relevant in deciding whether a business dinner is appropriate, such as:

(a) Is business, in fact, discussed? (b) Where is the dinner? (c) Are dinners held with subordinate men in similar positions (or is lunch had with them)?

Without diminishing the seriousness of sexual harassment, in many organizations marginalization of women is a more pervasive problem. To echo Sheryl Sandberg of Facebook, we need to increase our emphasis on sponsorship and mentoring and hold men accountable if they avoid women to avoid potential harassment claims

V. Overreaction

Some organizations are rolling out—or reinforcing—their zero-tolerance policies. This may sound good at first blush but it is not necessarily the case.

Zero tolerance policies may be heard as suggesting that any unacceptable conduct will result in termination, regardless of degree. Think about zero tolerance policies on illegal drugs; we don’t mete out different levels of discipline for the possession of illegal drugs based on the amount of drugs possessed.

Zero tolerance messaging in the context of sexual harassment can inhibit appropriate corrective action. Women (or men) who just want the behavior to stop may be afraid to use the procedure because they fear the response will be corporate capital punishment. Leaders may avoid taking corrective action because they believe the only choices they have are to ignore or to terminate.

That is not the case. The law is clear that not all unacceptable conduct of a harassing nature either warrants or requires termination.

Messaging is important here. If zero tolerance is part of your workplace vernacular, you do not need to eliminate it but you do need to refine it.

You can make clear that you will have zero tolerance for harassing conduct. But make clear your corrective action will be prompt and proportionate (that is, will result in “discipline up to and including discharge”)

The silence is broken. Now employers must make sure they manage the foreseeable but avoidable backlash.

This article is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.