HR failed on sexual harassment. Now what?
After a female employee at Vice revealed to the firm’s human resources department that she had been groped at the media company’s holiday party, the HR director reportedly told her to “laugh it off,” and gave similar advice to other staffers who disclosed they had been sexually harassed.
At the Weinstein Company, HR allegedly funneled every sexual harassment complaint about co-founder Harvey Weinstein back to Weinstein himself.
Uber’s HR department, after a female employee complained in the immediate aftermath of her new supervisor’s inappropriate behavior toward her, told the worker they “wouldn’t feel comfortable giving him anything other than a warning.”
While both Vice and Uber have since publicly apologized and said they have taken steps to change their corporate culture, and the Weinstein Company declined to comment on the HR allegations leveled against it, these incidents — along with many similar ones — point to a troubling pattern.
They shine a light not only on the prevalence of workplace sexual harassment, but also on the failure of human resources departments to properly handle these cases. Experts say the recent flood of cases that have rocked the nation make it clear that, in at least some areas of its mission, HR is failing the employees it ostensibly is there to serve.
“Unfortunately, most of the time, our experience has been [that] when women report to HR, things get worse; they don’t get better,” says Tom Spiggle, a lawyer who specializes in sexual harassment cases. “I tell employees, legally, they should report it to their employer, but I also tell them, ‘You should absolutely expect that it will result in either nothing happening, or something bad happening to you.’”
Spiggle estimates that 80% of harassment claims are “inadequately” dealt with by HR departments.
Reasons for HR’s failure abound: Lack of C-suite support, insufficient training, vague legal obligations, fear of speaking out — and perhaps the biggest problem of all: the not-so-secret secret that HR’s mission is in fact to protect the company and its executives, not the workers at the bottom of the food chain.
“It’s either explicitly understood that [HR professionals] are protecting their company or, even if it’s not explicit, it’s understood that, particularly if the senior HR person is a C-suite person, you’re kind of a team player,” Spiggle says. “It’s really hard to put on the other hat, play bad cop, and clean house.”
Though some HR departments have modified their policies in wake of the #metoo movement — by providing better methods for employees to report complaints and establishing more formal guidelines and procedures for handling allegations, for example — HR experts and attorneys contacted by Employee Benefit News are increasingly saying that employers need to do a better job of bringing their HR resources to bear on this problem.
Among their recommendations: arming human resources personnel with the training, independence and manpower to fully investigate claims of misconduct; establishing better methods for employees to report complaints; providing full transparency on how sexual harassment allegations are investigated; giving HR a seat at the table when it comes to creating policies; and allowing departments, when needed, to call in independent third parties to investigate allegations.
Most HR leaders have kept mum as wave after wave of accusations flood our newsfeeds. They have acknowledged few shortcomings, let alone a need for a reappraisal of their profession. Several HR professionals contacted by EBN declined to comment, or responded that their companies have always prioritized employee concerns.
“Where’s the HR voice in all this?” asks Amy Newman, a senior lecturer of management communication at Cornell University, who spent much of her career in human resources. “I haven’t heard from anybody. They need to blow the whistle.”
As many as 85% of women have experienced some form of sexual harassment at work, according to a 2016 report from the Equal Employment Opportunity Commission, yet only about 25% actually report it. To Spiggle, that indicates two important things. First, he says, the number of workplace harassment incidents is hard to pinpoint and likely much higher than the estimates, signaling an even more severe problem. Second, the statistics indicate that employees are too scared to come forward, he says, or convinced that a complaint will be handled poorly, if at all.
The latter was the case for former Uber engineer Susan Fowler. After she reported receiving inappropriate messages from her manager — on her first day of work, he told her he was looking for sexual partners — to human resources, HR responded that it was the man’s first offense (she later found out it wasn’t) and that he was a “high performer.” The department repeatedly told Fowler they refused to take actions against him and instead told her to transfer to another department or expect a poor performance review. She eventually detailed her experiences in a blog post.
Uber, for its part, says it has overhauled its human resources practices since Fowler’s blog post. The company tripled the size of its human resources team and introduced an anonymous hotline for employees to report abuse or inappropriate behavior, an Uber spokesperson said.
Kerry Alison Wekelo says stories like Fowler’s have caused her to take a hard look at how she executes her company’s sexual harassment policy. Managing director of HR at Actualize Consulting, a Reston, Va., financial professional services firm with about 100 employees, Wekelo admits she simply wasn’t doing a good enough job. Actualize Consulting’s sexual harassment policy, which she describes as a boilerplate statement lacking in specifics, was tucked away in the employee guidebook and only briefly mentioned at onboarding. “Not good enough, clearly,” she says. Employee training? “We weren’t good about that, either.”
“It was as basic as you could possibly get,” she says. “I was remiss in not having stronger policies.”
That’s a problem shared by a number of companies. Barebones policies stating that the company will address sexual harassment claims — with no specifics on exactly how they will do so — meet legal requirements, but do little to help employees and often leave members of the HR team adrift. (Wekelo says the lack of specificity in regulations often leaves them “up for interpretation” by HR.) Meanwhile, sexual harassment training often just checks a box, for the most part focuses on avoiding legal liability, and usually does little to change behaviors.
With those shortcomings in mind, Wekelo worked with Actualize’s lawyer to expand the company’s policy. Instead of saying that disciplinary action, including possible termination, might occur for an abuser, the company now has a strict zero-tolerance policy. “If the accusation is true, we will terminate [the harasser]. It needs to be zero-tolerance,” she says.
Most important, the policy spells out how and where employees can go to complain. Through a new formal complaint form on the firm’s employee portal, workers can file a complaint to HR, a supervisor or a third party. The third party is yet to be determined but will be engaged if an employee requests that option, Wekelo explains.
“I have to realize that in many cases, [victims] don’t want to be talking to me about it; they would want to be talking to a third party who is removed from the firm,” she says. “From a confidentiality perspective, I only need to know the outcome. I don’t need to know the details.”
Depending on whom the employee chooses to file the complaint with, either Actualize’s HR department or the third-party — likely a law firm — will conduct an investigation. Factors evaluated will include employee interviews and documentations, including emails and IMs. If either party finds the complaint to be true, HR will terminate the harasser.
Actualize Consulting’s enhanced policy formally launched Jan. 1, and Wekelo says she feels right about the course of action. It’s not about simply changing policies, she says; it’s about making employees feel like they are being heard, taken care of and prioritized.
“Seeing how many people in the news did not feel like they had a way to bring it to their management’s attention, or didn’t feel like they were going to be taken seriously, I wanted to make sure that we were doing what we could,” she explains. “We have never had a sexual harassment complaint in our organization, but if it does happen, I need to make them feel safe. Or maybe it did occur, and they didn’t feel comfortable speaking up.” Wekelo also is conducting an anonymous employee survey to ask if any employees have ever experienced sexual harassment in the workplace — to get “a pulse on the organization.”
In order to create an environment where employees are willing to come forward, employers now more than ever are well-served to not only make clear to employees what their sexual harassment policy is and exactly how they will handle claims, but also to share policies publicly as a way to increase discussion and accountability.
Facebook, for example, recently shared details about its reporting procedures, how it investigates claims and tips on anti-harassment training — not “because we think we have all the answers, but because we believe that the more companies are open about their policies, the more we can all learn from one another,” Facebook’s HR head, Lori Goler, said in a joint statement with chief operating officer Sheryl Sandberg.
Facebook says it has an investigations team made up of experienced HR professionals and lawyers trained to handle sensitive cases of sexual harassment and assault, but declined to elaborate on how it trains HR professionals when asked by EBN.
Likewise, Mastercard’s chief human resources officer, Michael Fraccaro, penned a blog post in mid-December reaffirming the company’s commitment to “act with urgency, investigate thoroughly and take appropriate action” in regard to sexual harassment, while calling on HR personnel to do a better job. Fraccaro told EBN Mastercard's policies and training are part of a bigger conversation "about our culture, which runs on decency, trust and the fair treatment of others," but declined to answer specific questions.
For many, making company harassment policies public is a good, if not overdue, start. But it takes more than that to make a difference, says Newman, author of “Building Leadership Character,” which will be published this year. Employers, especially HR management, must follow the policies they set — especially once those policies are shared with employees.
“Integrity is about doing what you say you’re going to do,” Newman says. “To have a policy and train [HR] people on it, and have [employees] doing what you’re telling them to do, and not following through, that lacks integrity.”
A new role
Admitting shortcomings and being more vocal about stricter policies and their enforcement is only part of the solution. To stem occurrences of workplace sexual harassment, HR managers must be better trained, establish better methods for employees to report complaints and be more transparent in how they investigate and handle allegations.
Perhaps most vital, HR managers will need to learn an entirely new skillset — something the profession historically has not prioritized.
Too often, some HR managers admit, investigating sexual harassment claims was “on-the-job training.” Or they were trained at the beginning of their career and never revisited the topic again.
“If they’re going to handle [sexual harassment claims], they need to be trained about how to do this [kind of] investigation,” Spiggle says. “It’s a different skill level. There are a lot of cases where HR is thrown into this and doesn’t know how to do it, even if they are trying to do their best.”
Employment lawyer Melissa Raphan, of Dorsey & Whitney, agrees. “A lot of times the people doing these investigations are too junior, and they really don’t want to do it,” she says, noting that HR officials often give up “too early” on allegations. Sexual harassment allegations often result in a “he said, she said” situation, Raphan explains, and HR’s solution is usually telling the accused, “‘If you engage in any additional [harassment] which is substantiated, we reserve the right to discipline up to or including termination.’”
“That’s just something that rolls off their tongue,” says Raphan, acknowledging that, oftentimes, no disciplinary action is taken in many harassment claims.
A number of things can corroborate sexual harassment claims — text messages, IMs, emails and photos. But that sometimes requires digging and credibility assessments — not always an automatic part of the HR toolkit. “It’s almost like being a cop in some ways,” Spiggle says. “It’s a different profession. It makes a lot of sense to invest in this.”
Too often, HR simply doesn’t conduct proper investigations due to a lack of time and manpower. HR managers are often the ones putting out fires in the company; time is stretched thin between managing payroll and benefits or complying with the Affordable Care Act. “One can see how, unless the HR rep has a lot of backing from the CEO or has resources, they might not be able to follow up in a way that they ideally would like to,” Spiggle says. Some suggest that one HR official in each company’s department should be dedicated solely to conducting investigations.
It goes beyond learning exactly how to conduct a sexual harassment investigation, though. Even more important is how HR managers follow through.
“If someone goes to HR and nothing happens and the behavior continues, then somebody’s missed the boat,” says Phyllis Hartman, a HR consultant who practiced human resources for nearly 20 years and now serves on Society for Human Resource Management’s ethics special expertise panel.
“Somebody’s not doing their job, the trust goes away, and once that happens, they won’t come back a second time,” she says, acknowledging that investigations are an “awkward” process for HR managers, made even more difficult when the accused perpetrator is a top executive.
HR personnel must have enough of a backbone — and must be empowered by C-suites and boards — to investigate an accused harasser, even top executives or star performers. “The higher up the person accused, the more difficult it is to investigate that, and that’s probably why some people got away with stuff,” Hartman says. “A lot of these HR people are afraid for their own jobs, too.”
Hartman’s bottom line: HR managers “have a moral and ethical obligation” to conduct investigations and take action as a result.
To truly stem the tide of workplace sexual harassment, HR managers should share with employees the results of investigations, including termination of wrongdoers, Newman says. That is how the company demonstrates that it truly has a zero-tolerance policy when it comes to sexual harassment, while also giving other employees the courage to speak out against wrongdoing by giving them faith that the organization will do something about it, she explains.
“[HR] should tell the entire organization what happened — that’s real transparency,” Newman says. “It comes with some risks, but then everyone knows what happened and that it’s not going to be tolerated in the future.”
“You don’t need to go in every detail, but [HR officials] should provide employees with a sense of what was substantiated in the investigation” and what corrective action was taken, she says. “When it’s all done behind the curtain, you aren’t creating confidence that anything is being done.”
Bringing in an unbiased expert
Perhaps the boldest game-changing proposal to shakeup HR involves removing human resources from the sexual-harassment equation altogether.
Many HR experts say employers should outsource the handling of employee complaints and the investigation of harassment. Such a move could help eliminate the conflict of interest that plagues the profession: its competing responsibilities as employee guardian and corporate protector.
Bringing in a law firm or specialist to deal with complaints removes that conflict, while also making accusers feel more at ease.
“You need someone with an arm’s-length relationship with the company [in order] to be unbiased,” Spiggle says. “I think it’s really difficult to expect an HR person to make the judgment and carry out a plan that you’re going to fire higher-ups in the company or do things to shake things up.”
Where HR can most have an impact, insiders say, is when it comes to creating an ethical company culture and acting as a business’ moral compass.
HR has to be empowered to set and enforce policy. Often stymied by lack of C-suite support, many HR managers often are left administering existing guidelines rather than driving the creation of new ones that might better serve the organization.
“HR is often put in the middle, and while they can suggest a course of action, they don’t always have the authority to make the final decision,” says Emily Quinn, HR practice leader at StratEx, a national human resources consulting and software firm. “The only way to really eliminate these issues is to have a strong leadership team that operates under a no-tolerance harassment policy and through their actions, sets the tone for the rest of the company.”
And if HR isn’t part of that leadership team? Then they should insist that they are.
“We should give HR the power, but if it’s not given, they should take it,” Cornell University’s Newman says.