Let’s get Sexual Harassment out of HR!

December 6, 2017

The recent tsunami of high profile, celebrity allegations of sexual harassment should prompt Human Resources Departments to revisit their role with regard to the investigation and disposition of substantive complaints.  The contrasting examples of Fox News and Fidelity Investments clearly illustrate the point.  Fox settled and paid hush money to victims.  Fidelity fired a rock star portfolio manager and Abby Johnson moved her office to the 11th floor where PMs work.  Lessons learned: paying victims for their silence as they exit is wrong on many levels and does nothing to curb unwanted behavior in the workplace.  Direct senior management involvement does.

To place things in context, most experienced HR practitioners realize that many harassment complaints are easily remedied.  “Bill told an off color joke in a meeting.”  Great.  Tell Bill to stop telling jokes that offend others. But what of the more serious claims of quid pro quo and hostile environment sexual harassment?  And what about the retaliation that often follows the refusal of unwanted behaviors?  Is HR viewed as the right party to handle these?  In our view; no.  Here are a few reasons why. 

·         Placing responsibility to investigate harassment allegations puts HR managers in an untenable position.  One of HR’s role is to advocate for all employees.  That includes both the accused and the accuser.  Asking HR to also protect the employer’s interests as detective, prosecutor and judge severely compromises the principle of procedural justice. 

·         Employee perception is that HR is simply not helpful.  In her article that elaborates on the perception, Tovia Smith of NPR recounts the case of a young woman who questioned whether HR “considered her to be more of a threat to the company than her harasser to be a threat to her.” 

·         HR practitioners are poorly trained to investigate complaints of sexual harassment.  SHRM’s own Body of Knowledge, the defining set of competencies for the profession, does not include skills related to conducting investigations.  Functional Area #14 states that HR professionals should know U.S. Employment Law and Regulations.  And while SHRM  publishes some tools for conducting investigations, it also warns that: “Conducting workplace investigations is one of the most challenging duties that HR professionals must take on.”

·         The power structure within the organization, which includes HR, is not a level playing field.  The HR function typically reports into other functions such as Administration, Finance or Operations.  Some HR departments report directly to the CEO.  But even in that case, there is a disequilibrium.  Take the 2006 case at Caritas Christi when Helen Drinan, SVP of HR had to investigate allegations of sexual harassment involving her CEO, Dr. Robert Haddad.  In essence, she was investigating her own boss.  Only when an external investigation was completed was Drinan’s recommendation to terminate Haddad validated.

These factors, among others, also contribute to HR’s poor brand with outside observers.  HR is “as bad as FEMA after Katrina,” says Dr. Gary Namie, a social psychologist and director of the Workplace Bullying Institute.  He goes on to explain that HR is largely a support function whose primary duty is to mitigate risks for the organization.  If this perception is pervasively held both internal and external to the organization, what chance does HR have in putting people first?

So what is the call to action?  The Caritas Christie example offered above supports the idea of outsourcing all investigations of sexual harassment.  This practice, though expensive, is becoming more common.  Outsourcing investigations has been effectively used in other HR areas such as Workman’s Compensation fraud.  Colleges and universities are also turning to outside professionals when Title IX issues arise.

There are other ways to address the current situation should outsourcing not be viable.  One practical approach when keeping things internal is to place the responsibility for investigating with the Chief Ethics/Compliance Officer. Financial institutions and investment firms deploy large staffs to ensure that SEC regulations are followed.  The compliance officer typically reports directly to a committee of the board to ensure that even the senior most parties are not above compliance.  Replicating this model when violations of the sexual harassment policies arise makes a lot of sense. 

Alternatively, a hybrid approach would be to provide an objective external resource to coach those stepping forward with complaints.  Companies like Bravely are becoming increasingly popular because in the words of CEO Toby Hervey; “We offer an alternative starting point that’s totally confidential, and totally safe, because it all lives outside the walls of the company.”

This does not mean to say that HR should have no role when it comes to sexual harassment prevention.  Designing and implementing sexual harassment training for managers and employees remains a legitimate role and one in which HR is competent.  Additionally, HR can and should “call out” behaviors that approach the standard of hostile environment harassment; those that are offensive, unwanted, severe and pervasive in nature. 

At the end of the day, the manner in which allegations of sexual harassment are handled by HR is not working.  The EEOC reports that complaints regarding sexual harassment have remained constant at about 12,000 per year for several years.  In other words, employees are seeking outside help.  Other survey data show that more than 50% of women report having been harassed at some point in their working careers.  Additional data show that most leave the organization rather than bringing forth allegations, a practice that is seen as career limiting.  Ignoring the data does damage to organizations and their employer brand.  Web pages such as Glass Door and the more conventional social media platforms facilitate the growth of a #metoo like phenomenon.

Most conversations I have overheard regarding the recent proliferation of allegations include remarks like; “It’s been going on forever” and  “Nothing is going to change.”  We cannot morally, ethically, or practically be willing to accept the status quo.  We are doing damage to the talent we say we covet.  Now is the time to take action to protect that human capital.

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