Earlier, I came across this story (hello, insomnia) about one company (not our client!) who did not take the steps we have recommended in our blog to prevent harassment and retaliation, and is now being excoriated for it in the press.

This Buzzfeed article on the problems one tech start-up presents a textbook example of what can happen when a company “off roads,” i.e., veers away from the EEOC’s “roadmap” for sexual harassment prevention.

Before I provide you with the facts of this case, let’s recap a few points, shall we?

I told you here and part one of the EEOC’s roadmap is that first, the organizational culture must be one that does not tolerate harassment. Leaders shape the culture. Leaders must believe authentically that harassment is wrong, not want it in the workplace, must articulate these beliefs, and hold this same expectation of others.

Of course! Sounds right. But, not so fast. My partner Rich Cohen’s recent research, here, indicates that not all might think this way!

Authentically focusing the climate on anti-harassment measures seems like a necessary first step. Remember, we told you most recently here and here that (1) organizations that tolerate offensive behavior typically have far greater problems with sexual harassment and, (2) indeed, scientific studies show that organizational “tolerance” is the single most powerful factor in determining whether sexual harassment will occur.

In fact, studies have shown that strict management norms and a climate that does not tolerate offensive behavior can inhibit harassment, even by those with a propensity toward such conduct.

What happens when this fails? Take a look:

CEO gropes employee at after-hours function at an off-site. Employee notes that although company is five years old, it lacked an HR function so didn’t know what to do to report. Employees had no central function to which to report or one who was trained in handling harassment investigations.

So, employee tells her partner (at work) and then her boss about the misconduct a couple of months later. Then she quits, feeling crappy about what happened to her and the lack of anything being done about it.

Ding ding!

Employers, HR is your best defense to a harassment claim. As I wrote previously, quoting former Comm’r Feldblum, “A good HR office is the linchpin for an employer’s effective system for learning about harassment and then responding quickly and effectively.”

That’s not what happened in this case. Instead, first, while the CEO apologized (citing “cultural differences”), he declined to make a statement to the company.

We told you here that citing culture differences is not a defense to sexual harassment. An employer is liable for unlawful harassment in violation of the Title VII of the Civil Rights Act of 1964 when the harasser is of a sufficiently high rank to fall “within that class . . . who may be treated as the organization’s proxy.” Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2284 (1998). Cultural differences do not come into play.

Second, the harassment investigation was viewed by employees as a sham, conducted by an investor and not a trained, impartial third party.

Many of the employees knew about this situation by now, and they. weren’t. having. it. One employee, who advised he’d been terminated for performance reasons, stated:

People say that the culture of an organization is defined by the worst behavior its leaders are willing to tolerate. I think it’s also defined by the worst behavior by the leaders that the rank and file are willing to tolerate.

Yeah, remember: tolerance of sexual harassment breeds more of it.

An organizational culture that tolerates harassment results in lowered productivity and employee morale while increasing attrition, breeding mistrust, and causing internal and external reputational damage.

This is a case in point.

Next on the road trip, er, roadmap: accountability. Employers must hold alleged harassers accountable in a fair and proportionate matter, regardless of rank or rainmaking ability. This includes holding accountable employees who fail to respond to reports of harassment and anyone who retaliates against a person who reports, corroborates, or intervenes to stop harassment.

Rich and I discussed this in Part I of our Dialogues about sexual harassment prevention:

Sexual harassment perpetuates when it is nurtured by others and continues unopposed; but rather than placing the onus solely on women to report … studies show that if men are accountable for their own actions and oppose sexism and harassment when they find it, sexual harassment is far more likely to abate. …

Here, the employee’s story and its tortured road toward resolution is, according to the reporter, “a telling example of the entrenched problems of the tech industry when it comes to mishandling sexual misconduct. It is further evidence that for many companies, the perception of accountability is more important than accountability itself,…”

The perception of accountability is not actual accountability. True accountability can make a difference. A check-the-box or placating response does not.

When other employees found out about the allegations and the company’s lackluster response, the complainant found she wasn’t the only employee who felt the company’s public accounting for the incident was nonexistent. She discovered other employees had raised concerns about the incident with the employer but felt they were being stonewalled.

The employee who had been the victim of harassment stated:

I did hope the company would take some of these steps and make positive changes. At the same time, in my view there was a gap in terms of accountability.

The third point is that policies, procedures, and training must round out the first two points to create a comprehensive, holistic harassment prevention effort.

Remember, that means:

  • Having a clear, no-tolerance sexual harassment policy in the employee handbook that discusses specific misconduct and examples, i.e., no sexual or sexist jokes, puns, innuendo, smacks on the butt, grabbing of any body parts, quid pro quo harassment (and what that means) at work or at an after-hours event;
  • Ensuring anti-harassment/anti-discrimination policies are disseminated (and updated) throughout the company and understood by all employees;
  • Providing a written procedure for reporting and thoroughly investigating claims of unlawful harassment and following that procedure;
  • Following up with the individual who reported the harassment—regardless of the finding—to ensure they feel safe and that they are not being retaliated against; and
  • Taking swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator.
  • Having clear standards for discipline and implementing them.

These principles don’t just apply within the workplace during work hours. They govern the entire employment relationship!

As my partner Eric Meyer told you here,

In or out of the workplace, it’s all harassment.

In one hostile work environment lawsuit, where a plaintiff argued that the court should consider not just what happened to her in the office, but also at the happy hour, the company responded that it cannot be held responsible for the conduct at the happy hour because it was between co-workers, and happened after work hours, off-site, and at a non-company event.

The court, noted Eric, had other ideas. It said:

Moreover, “[t]he court is aware of no settled law that, in gauging the severity or pervasiveness and effects of sexual harassment, allows the offender to compartmentalize his misconduct . . . in other words, to allow a harasser to pick and choose the venue for his assaults so as to not account for those that occur physically outside the workplace.”

Employer Takeaway

There were so many missteps here, but the above detail just a few. So, my takeaways for you this morning include:

  1. Harassment is harassment regardless of where it occurs;
  2. Transparency and real accountability are key. The lack of it breeds mistrust among employees and will cost the company in the long run;
  3. An organizational culture that tolerates harassment lowers productivity and employee morale while raising attrition and can cause internal and external reputational damage;
  4. The lack of a solid HR function, resulting in no knowledgable, central means for employees to report misconduct, can be fatal to a company’s handling of a harassment or retaliation claim; and, of course,
  5. “There are cultural differences,” does not mitigate sexual harassment.

Finally, the investigation of a report of harassment has to be real, fact-based, thorough, and conducted by a neutral third-party, one who isn’t a stakeholder.