The old prescriptions for preventing sexual harassment — training and the publication of anti-harassment policies — often do not work.
If they did, sexual harassment would not be everywhere these days. Political, entertainment and corporate icons are falling like dominoes after years of silence by victims. The consequences are felt not only by those victims, but also by ousted harassers’ employers who are perceived as enablers and are left to pick up the shattered pieces of their reputations. Corporations, in particular, face millions of dollars in lost market capitalization when their stock prices plunge after CEOs or key figures are terminated or “retire” following the disclosure of recent or long-past harassment claims. Shareholders then also feel the pain, as the effect of sexual harassment ripples far beyond the individuals directly involved.
What can be done to better prevent sexual harassment, or at least nip it in the bud?
There is no single solution, but there is a single beginning. Employers need to address head-on and solve a root of the problem: the reluctance of victims to come forward and notify management of harassing or inappropriate behavior.
There are many reasons for that reluctance, including fear of retaliation or of damaging one’s career, or simply a preference to avoid controversy and to put unpleasant events in the rear-view mirror. These concerns are especially severe when the harasser holds a senior or prominent role in the organization.
Employers can encourage reporting of harassment by making better use of available tools. I recommend use of an outsourced hotline that operates with specific protocols to honor complaining employees’ interest in confidentiality. Hotlines are nothing new, but the confidentiality features of this protocol can make them more effective than other tools in promoting early disclosure of inappropriate behavior — before, and not after, the situation metastasizes into full-blown sexual harassment and a crisis.
How does it work? Employers first retain an outside organization to field harassment complaints that employees can report without disclosing their identity to the employer. The employer must prominently publicize the hotline’s telephone number or email address to the workforce so that it is well known, while also informing employees that anonymous complaints will be accepted.
When a complaint is made, the hotline’s counselors would give complaining employees a range of confidentiality options. The employee can designate the exact scope of information that he or she wishes to be shared with the employer and can also designate the units within the employer (such as the Human Resources department) to whom the employee wishes the information to be directed. In the case of complaints about senior executives, the complaining employee could limit disclosure by the hotline counselor to the board of directors or to others who do not report to the senior executive accused of impropriety.
After receiving a complaint, the hotline counselor would convey the information to the employer to the extent and in the manner authorized by the complaining employee. The counselor would then be available as an intermediary between anonymous employees and the employer. In this fashion, the employer could seek further details about the allegations and encourage the complaining employee to come forward, without the employee being first required to shed the cloak of anonymity.
Even anonymous complaints can be useful in flagging actual harassment for employers, such as where multiple complaints are received about a single individual. But anonymous complaints can also be false and malicious. Employers will have to remain wary of this possibility and should not rely solely on anonymous complaints in taking disciplinary or other adverse actions against alleged harassers. But the interactive process between an anonymous complaining employee and the employer — with the hotline counselor as intermediary — can be used to build trust with the reporting employees and to encourage them to waive anonymity.
Employers must also take steps to ensure that sexual-harassment allegations are effectively addressed once a complaint is received. In particular, human resources staff need to be responsive and empowered with confidence “from the top” of the organization that their own careers will not suffer if they recommend tough measures against executives holding senior positions or their allies. If nothing else, recent events have shown that effective measures to prevent or remedy sexual harassment are value-preserving, and not value-destroying, for businesses.
Past methods have not been as effective as hoped. Other techniques, such as the outsourced hotline protocol, should be used more extensively — not alone, but in conjunction with other measures (including more effective training, written policies and a strong and genuine organizational culture against harassment). As Santayana wrote: “Those who cannot remember the past are condemned to repeat it.”
Daniel I. Prywes, a partner with the law firm of Morris, Manning & Martin LLP in D.C., represents employers in addressing sexual-harassment issues.