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Harassment in the Workplace: Leadership Impact and the Role of the Compliance and Ethics Practitioner

Abstract:

Harassment is not a new issue in the workplace nor in society as a whole, but it has hit our radar recently in a very powerful manner, in what many have referred to as a reckoning. What was once a very individual experience, one that was private and sometimes accompanied by shame and fear, has shifted into a very public discussion around leadership accountability and corporate transparency. This has placed a prominent spotlight on workplace culture and the role of the compliance and ethics practitioner. This article unpacks the various elements of workplace harassment, the impact on culture and breakdown in trust. The discussion addresses the legacy approach to training, why and how that approach needs to change and why training alone will not transform behavior. Recommendations are offered, including the need to invest in and develop leaders with the critical skills of active listening, values-based decision-making, and approachability. Further guidance provides practical steps compliance and ethics practitioners can take to build a more collaborative, cohesive strategy for fostering a safe, ethical workplace culture. The underlying theme establishes that compliance is an outcome of a healthy culture.

Introduction

The test of a leader is how he or she responds to crisis. The leader at the top of the organization should set the tone and own accountability to lead and transform the culture. This includes promoting and building ethical institutional structures so that the workforce feels safe, knowing that any complaints are heeded, investigated and addressed. The storm of recent headlines on sexual harassment and misconduct scandals points to unfortunate patterns characterized by companies that showed little evidence of accountable leadership, placed profits over values and enabled a culture of complicity. Leaders have a responsibility to take action when misconduct is reported. Neglecting this responsibility is costly, both reputationally and financially. Most important, the human cost is irreversible. Fear and mistrust can drive a victim to feel powerless, eroding the entire DNA of the organization.

Abuse of Power

People in positions of power who harass, discriminate, assault, and demoralize others do so because they can. These actions are not necessarily happening in the dark—the behavior can sometimes happen in the open. Often the perpetrators are quite infamous for their toxic behavior, and as the headlines confirm, corporations have failed to hold them accountable.

It’s been said that where lies power, lies increased risk. Business leaders have the power—and responsibility—to prevent sexual harassment, misconduct and abuse in the workplace. The compliance and ethics practitioner has a responsibility to shape and build the foundation of their programs to promote an ethical workplace. All of the sexual harassment cases in the headlines spotlight organizations that had the basic building blocks of a compliance and ethics program, including a code of conduct, an ethics hotline, and dozens if not hundreds of policies. Yet these instruments, alone, did not (and could not) cultivate a harassment-free culture. These tools did not hold or enforce behavior accountability. Sometimes there is a lack of clarity on what the tools and resources really mean in the context of everyday workplace decisions and experiences. For a victim, ambiguity creates uncertainty. When a victim is experiencing fear or shame, ambiguity can prevent the action necessary to eradicate the toxic behavior. Ambiguity can dampen the courage for a victim to report misconduct.

A study by the Equal Employment Opportunity Commission in New York found that when female participants were asked if they had experienced sexual harassment at work, without defining the term, only 25% reported experiencing some form of harassment in the workplace. But when specific examples were mentioned to illustrate the definition, such as asking for sexual favors, creating a hostile work environment, imparting crude and toxic humor, 60% of the female respondents reported experiencing some sort of sexual or gender harassment.[2]

Culture Corollary

Historically, the human resources (HR) and legal functions have focused their responsibility regarding sexual harassment issues on the legal aspects of mitigating company liability. There are U.S. Federal standards in place to address the framework for a prevention and response program, such as the creation and distribution of policies with an evidential process for attestation, complaint procedures, investigation mechanisms, annual anti-sexual harassment and anti-discrimination training. Last but not least, typically buried as a final standard, the program will include the concept of an organizational culture where reporting is encouraged without fear and remediation is implemented and discussed openly. Yet the research, cases in the headlines and even the regulators highlight the importance of this standard by pointing to a clear correlation between behavior and culture.

This correlation helps explain how conflicts can arise between the compliance and ethics practitioner and the HR and legal functions. Compliance and ethics’ primary obligation is to promote a safe, ethical workplace culture that supports the workforce. But evidenced by a number of the harassment cases in the headlines, when victims had escalated their concerns to HR or the General Counsel, these functional leads managed the cases involving discriminatory and abusive actions of powerful leaders by mitigating risks to the corporation, not by protecting the individual, nor the workplace. Often when assault cases are not investigated, but instead are settled quietly and quickly, the facts never come to light, and the patterns of abuse are normalized and allowed to perpetuate. If a behavioral issue is addressed as an HR issue or treated within a limited lens as a legal issue, then the root of the problem, the culture that has enabled this behavior, is not being addressed. Unfortunately this is how toxic patterns develop.

Motivated Blindness

What can lead to an environment in which well-intended leaders forget what it’s like to be powerless? If in looking at some recent cases of sexual harassment, misconduct, assault and discrimination, the answer seems to be in the economics of power. We see multiple instances of harassment victims attempting to speak out and having their claims fall upon deaf ears, or even having their claims result in retaliation and systemic inaction from management. In just a few sample cases of powerful individuals abusing their positions of power, such as Matt Lauer, Bill O’Reilly, Harvey Weinstein, Charlie Rose, or Kevin Spacey, in these workplaces, most EVERYONE knew about it. The misconduct was not surprising and had occurred over years, sometimes decades.

The resulting #METOO and #TIMESUP movements are not solely due to the outrageous conduct, which is unfortunately nothing new in a workplace. They are more so the result of the deafening silence and inaction by the companies and their representative leaders entrusted to ensure a safe workplace. Leaders who were in positions of influence at the board and C-suite levels were well aware of the allegations of improper conduct and deliberately chose to do nothing about it for much too long. “Motivated blindness” has surfaced as a common issue at the highest levels of organizations, from front-line management through the C-suite and board of directors.

Behavior is a Business Issue

Historically, allegations of sexual harassment were handled by the HR professionals, rather than the compliance teams. Many continue to debate whether harassment is a legal or HR issue. However, the volume of the reported issues, especially in some visible industries, is shifting the dialogue building a more collaborative approach to action and accountability. Behavior is a business issue, because of the negative impact it can have on the corporate culture dynamics. The goal should be to always conduct business with high ethical standards and create a track record of action that generates pride within the organization. Placing value on what is legal versus what is right is problematic. In many cases, illegal conduct is tolerated because the culture enables a business decision to allow the conduct to continue. The rationalization heard in the corridors is that benefit to the bottom line weighs more than what some characterize as a “trivial HR matter.”

Rationalization is not acceptable when workplace behavior compromises respect or human dignity. HR, legal and compliance should be working together in an integrated approach to assessing risk and taking action. Compliance and ethics practitioners should be leading the strategy to protect, enable and build an ethical and safe workplace. Further repeated patterns of harassment and misconduct can reveal deeper systematic issues within the organization’s overall corporate culture.

Trust and Transparency

Ongoing sexual harassment that goes unaddressed at an organization will create a toxic environment where the workforce feels paralyzed by fear and distrust. A culture of complacency will result, creating a workplace attitude of “why bother speaking out?” If the perception is that leadership does not care and will not take action, the organization has reached a dangerous crossroads. The paralysis can spread into other areas of the organization.

As an outcome of the #METOO and #TIMESUP movements, a national public discourse has arisen around the desire for greater trust and transparency. Social media platforms have emerged as an equalizer, facilitating opportunity to promote greater courage for victims to speak out. The rallying support of the anonymous community at large is galvanizing victims to share their powerful narratives, with open and raw vigor. The central theme of this public discourse is a desire for leaders and institutions to rebuild and restore trust and greater transparency.

According to the Edelman Barometer on Trust[3] , trust in institutions, governments, corporations and—most importantly—leaders, is at a historic low. CEOs have a 37% credibility rating. Compliance and ethics practitioners are embedding trust as a bedrock theme into their compliance and ethics program strategy from tools to communication, education and leader-modeled behavior.

Training Alone Will Not Shift Behavior

One of an organization’s typical knee-jerk reactions when attempting to address sexual harassment is to roll out more training. With increased regulatory requirements, general compliance training fatigue is at an all-time high. Compounding this stress is the fact that, unfortunately in some organizations, when top leadership is under investigation, the larger workforce receives more training on sexual misconduct, but little is done to train and hold leaders accountable. The research indicates that more effective anti-sexual harassment training strategies are those that target and engage with leaders first. Compliance and ethics practitioners need to continually spotlight the role and responsibility of leaders around a zero-tolerance culture. In order for anti-sexual harassment training to have an impact, the dialogue needs to start with the role and accountability of leaders in modeling the organization’s policies and decision-making. This builds credibility, transfers responsibility to those who are shepherds of the corporate culture on the ground and promotes ongoing opportunity for healthy dialogue.

Training on sexual harassment also frequently misses the mark in other key ways. Most training programs focus heavily on laundry lists of specific rules and forbidden behaviors and focus too little on the underlying causes and enablers of harassment. The most effective anti-harassment training programs look deeper: They raise awareness of right versus wrong behavior by exploring the nuances behind practices and behaviors that lead to sexual misconduct. They emphasize a single standard of values-based ethical behavior that should apply across the entire organization and be communicated consistently and prominently. It’s important that all new employees are taught that everyone—leaders, managers and employees alike—is held to the same standards of ethics and accountability. Management and executives must learn that when certain groups or individuals are given preferential treatment or protection regarding harassing behavior, it can enable a culture of fear and silence in which people won’t come forward about misconduct.

Are We Listening Up?

Less than 2% of front-line leaders are trained to be active listeners. Yet research shows that nearly 60% of the workforce will voice claims of misconduct to front-line management. Managers are employees’ front line. How they hear, how they respond and take action matters. Inaction serves a devastating blow to workers.

Beyond active listening, compliance and ethics practitioners need to ensure greater transparency around procedural justice. This can engender greater trust in the system and promote more speaking out. Taking action, rather than paying lip service to the “company’s commitment,” really matters.

A common thread in countless cases of sexual harassment consists of victims raising their concerns repeatedly but having them fall on deaf ears. In extreme cases, complaints about harassment are even met with formal disciplinary measures, up to and including termination of employment. This phenomenon is especially prevalent when the perpetrator is in a position of power over the victim, an outcome which shows how misplaced deference to authority can give rise to preferential, unequal treatment. Without a workplace culture that assumes equal treatment of everyone regardless of authority, performance or seniority, employees will likely cease to speak up at all.

Ethics and compliance practitioners should develop their managers to understand what a zero-tolerance stance on sexual harassment truly means. Provide examples. Create tools and resources to coach them on how to navigate the power inherent in their positions responsibly. Create an ongoing dialogue that promotes greater skills in listening, and encourages both employees and supervisors to be allies to, and supporters of, victims of harassment.

Manager development needs to highlight the following:

  • Accountability for providing a safe ethical culture

  • Self-awareness (mindfulness of action and inaction)

  • Listening and responding

  • Leading by example

  • Being approachable

  • Knowing silence is not OK

Bystanders and Observers

Many anti-harassment training programs lean heavily on lists of policies and specific forbidden behaviors, but this approach can miss key nuances that need to be discussed. First, certain behaviors might circumvent rules, but still be intended to harass. Second, some innocuous behaviors might end up being punished unfairly. These distinctions are where examinations of the intent and emotional impact of people’s actions are so crucial.

It is critically important to unpack uncomfortable situations, such as bystander/observer nuances. Consider launching conversation starters based on nuanced situations, such as how an observer can be an “ALLY” to victims of harassment, or the role of a “BYSTANDER.” For example, should the bystander escalate concerns if the victim insists they stand down? Explore using teaching tools that can outline common behavioral pitfalls, such as rationalizing a perpetrator of harassment’s poor behavior. Provide tangible guidance about what positive action looks like. Emphasize the importance of listening actively to victims instead of talking over them, speaking up about observed harassing behavior instead of passively disapproving, and educating oneself on harassment so that victims will not need to explain why certain behaviors are wrong.

Lead with Values

Harassment prevention training is often the first introduction employees have to a company’s attitudes and expectations surrounding workplace sexual misconduct: In other words, it can shape their first perception of how a company’s culture handles harassment. And too many anti-harassment training programs fail to address the importance of living the company’s values. These are the ethical standards that all colleagues must be held to, such as the importance of leader empathy, listening and responsibility. These are key complexities that can determine how leaders respond to harassing behavior and report misconduct. By addressing these crucial concerns, anti-harassment training programs are more likely to prevent harassment before it happens and ensure appropriate responses when it does.

Get on Board

Get your board of directors engaged in the dialogue. The primary issue at the doorstep of boards today is gaining clarity on their personal role and responsibility around the organization’s culture. Historically many boards viewed ethics and compliance as something in the purview of the risk or audit committee, not something for which the board as a whole needs to feel responsible. That view is shifting. First, board members are becoming increasingly concerned about their own personal responsibilities and liabilities. Second, board members are recognizing that an effective, values-based ethics and compliance strategy can mitigate risks within an organization. They are starting to recognize that policy alone is not going to manage risk. In today’s environment, directors should be a part of a proactive dialogue with the CEO and other top executives to reinforce a commitment to doing business in an ethical way.

Tips for Compliance and Ethics Practitioners

  1. Reach across the aisle: collaborate cross-functionally

  2. Build ‘drip’ campaigns: increase the cadence of communications to many short bits

  3. Align core messages with corporate values

  4. Train on integrating situational awareness and guidelines

  5. Simplify policies so they are tangible, actionable

  6. Train the workforce with simulated practice APPLYING policy

  7. Embed dialogue into existing meetings, stand-ups

  8. Be accessible—it takes courage to speak out

  9. Develop front-line leaders to LISTEN, take ACTION

  10. Measure accountability across the board

  11. Remember: Compliance is an outcome of Culture.

 
1 Marsha Ershaghi Hames, Ph.D., CCEP, is Managing Director for Strategy & Development at LRN. She has been with LRN since 2001 and is responsible for advisory leadership on compliance and ethics education strategy and solution development.
2 Equal Employment Opportunity Commission, “Select Task Force on the Study of Harassment in the Workplace: Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic,” 2016. See footnote 16. Available at: https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm.
3 https://www.edelman.com/trust-barometer.