In recent years, we’ve seen a growing public recognition of the insidious role sexual harassment plays in the workplace. Yet, shockingly, much of corporate America has failed to keep pace. Recent high-profile scandals at companies like Uber, Fox News, and Sterling Jewelers show an absence of policies and institutional controls to prevent harassment in the workplace. When policies and procedures do exist, too often they are merely window-dressing designed to create the illusion of protection for employees. Worse, many internal policies are actually in place to punish victims of harassment, and put them at a disadvantage if they attempt to seek recourse either in-house or through the courts. It is time for companies to take effective and necessary measures to protect their employees by preventing harassment from occurring, and dealing with incidents seriously and fairly when they are reported.
Recent high-profile scandals that are dominating the news reveal a recurrent failure on the part of companies to introduce policies and procedures that effectively address sexual harassment. Each day, it seems that we see a new headline outlining a corporate culture in which harassment and discrimination are commonplace. From the story of a female engineer’s experience with unwelcome sexual advances and a corrupted Human Resources system at Uber to the massive class-action arbitration case against Sterling Jewelers – it is clear that sexual harassment remains a major issue in the workplace. While the facts are still coming out, evidence so far suggests that both of these companies did not have a policy in place to prevent or properly investigate and punish reported incidents of harassment. Unfortunately, this is not a new phenomenon. Companies are repeating mistakes and continuing to fail their employees by not adopting procedures and controls that ensure such behavior is eliminated.
Unfortunately, too many times in cases I’ve handled over the years, I’ve seen major companies have procedures in place that have the facade of providing protection to employees, but in fact do the opposite and protect the companies themselves. For instance, many times companies establish hotlines for reporting harassment, but there is no effective mechanism to investigate complaints once they are filed. In a sexual harassment case that I tried against Fortune 1000 company Aaron Rents in the Southern District of Illinois federal court, it was clear that their hotline was nothing more than a means to protect the company. In that case, the corporate lawyer who was charged with writing and enforcing the company’s sexual harassment policy told me on the witness stand that the real purpose of the company’s sexual harassment policy was not to protect employees, but to “protect ourselves from lawyers like you, Mr. Morelli.”
More concerning is that internal processes intended to resolve allegations of sexual harassment and discrimination often only further victimize employees, and make it difficult for them to seek real justice. In the case of hotlines, there is evidence that some companies exploit this resource to learn of harassment cases and prepare for potential legal action, intimidating victims in the process. With the Sterling Jewelers case, many of the women expressed concern over a potential negative impact on their careers if they used the hotline – with at least one employee claiming she was told to “grow some thick skin” after reporting an incident through the hotline. In addition, companies are increasingly using internal arbitration systems, including Sterling Jewelers, which force victims to seek resolution within the company. These systems often prohibit victims from bringing lawsuits in court before juries of their peers – grossly limiting their ability to obtain legal justice. This is another example of a policy that puts victims at a disadvantage.
Companies need to implement real policies to protect their employees and end sexual harassment. Clear incidents of inappropriate behavior should be met with zero tolerance – and result in suspension or termination, regardless of the offender’s status. Policies should also encourage employees to report incidents of sexual discrimination and harassment without fear of retribution by implementing clear and transparent investigation processes. Finally, if allegations are made by employees, they should be investigated by independent companies without ties to the employer. Companies’ cultures will not change until their policies give all employees a fair and open forum when it comes to reporting sexual harassment in the workplace.