The roots of the #MeToo movement can be traced back as far as 1991 and the treatment of Anita Hill during her testimony at the confirmation hearing for Supreme Court Justice Clarence Thomas. Similarly, the #BlackLivesMatter has roots in controversial police shootings that go even further back.
But they have clearly emerged with greater force with the confirmation hearings for Justice Brett Kavanaugh; the investigation into former Hollywood producer Harvey Weinstein; police actions in Baltimore, Ferguson, Missouri and elsewhere; and news reports that raise these issues frequently.
The entire phenomenon continues to be a very strong presence in terms of litigation. As a litigator, I see it first hand.
Workplace harassment is also a focus of the federal government’s focus. While the Equal Employment Opportunity Commission has just two members at present—and so cannot muster a quorum—it recently held a roundtable discussion that concluded workplace harassment is prevalent, and too often goes unreported. That conclusion corresponds with the EEOC’s study from 2016 that the vast majority of employees—70%--said that they did not report what they perceived as harassment.
These issues are arising at a time of generational changes in our workplaces—where as many as five generations now may be working side by side. Behavior or speech that might have gone unquestioned in past decades is confronting new sensibilities from younger generations.
A lot of the discussion around #MeToo and harassment in general is now moving into what I would call the gray areas. It’s not so much about the black-and-white issues in which everyone can agree that the behavior is unacceptable. Instead, it’s about activities in which not every person would say that makes me uncomfortable—but some people would say it makes them uncomfortable.
So what are best practices in preventing workplace harassment? It starts at the top with leaders who have and demonstrate a commitment to diversity, inclusion and respect. You can do a lot of training and you can have a lot of discussions—but what are your leaders doing? Are they, for instance, actually attending the training, are they denunciating their message on inclusion and respect?
And speaking of training, you don’t need to wait to take action for some very expensive training or a very long program. We are really talking about short discussions about policy. What’s essential is that employees know they are accountable. Training, supported by senior leadership, must be ongoing to be effective.
Some other things that companies are doing to move beyond just compliance include removing complaints of sexual harassment or pay inequities from mandatory arbitration; becoming more transparent on how they act on complaints; and providing their boards with regular reports on training, and on the effectiveness of their handling of complaints.
Going above and beyond compliance, consider training on bystander intervention, which teaches all employees what they can do to help intercede and defuse a situation when they see an incident that may be making someone uncomfortable.
Training on workplace civility—going beyond harassment prevention—is also a good step towards fostering a good work environment, as is unconscious bias training that asks people to look beyond their identity to the perspectives of others.
When you get allegations of harassment, your response is critical. An employer’s actions in response to complaints send powerful workplace cultural signals. The best response is to promptly and thoroughly investigate complaints, and ensures that alleged harassers are not prematurely presumed guilty.
Just as in so many other areas of our media industry, data counts, data matters, in dealing with issues of workplace harassment or pay inequity. Collect data in real time tracking of your investigations, and use that data to identify problem areas you may have.
Remember the goal of all of this training and actions when we think about the issue of harassment. It’s not about limiting ourselves to checking the boxes for legal compliance—what we want to have is transformative place where people want to work with us.
Camille Olson is a partner of in the Chicago office of Seyfarth Shaw LLP, where she is Co-Chair of its National Complex Litigation Practice Group, and National Chairperson of its Complex Discrimination Litigation Practice Group.
This column is adapted from a presentation Camille Olson gave at Inland’s Virtual Human Resources Management Conference in April.