CBS Corp., Google, Uber, Nike: #MeToo has given women the guts and the platform to challenge sexual harassment and discrimination.
In each case, we see a familiar trajectory. After women detail workplace abuse, offenders depart after a protracted expose. CBS chief executive Leslie Moonves, for example, stepped down after a dozen women implicated him as an abuser. Similarly, a sweeping investigation into workplace conduct at Nike resulted in the departures of eleven top-level executives and senior managers, and a broad apology from the CEO.
While confronting perpetrators is an important first step, it’s not a formula for change. “The reality is HR departments are often trying get rid of the problem as quickly and as quietly as possible,” shares Don McGowan, Chief Legal Officer and Business Affairs of The Pokémon Company International. “They try to get the harasser to leave, or get the victim to leave. Basically HR is there to help protect the company, not the victim. I don’t agree with this, but many do.”
Undoubtedly, we can garner better outcomes from the awareness #Metoo has mounted than the apathy McGowan identifies. The bigger goal is about creating cultures where women don’t have to get hurt in order to earn their safety. And yet, too often we see vague promises from companies, rather than specific plans to make sure it doesn’t happen again.
Kristina Bergman, CEO and Founder of Integris Software, designed a preemptive strategy to protect her company from sexual harassment. Bergman explains: “I knew I wanted to create a culture of inclusion and respect supported by board members who shared my values. What I didn’t want was a work environment that allowed for, or turned a blind eye to, sexual harassment — something women in our industry face all too often. So, I acted preemptively to protect my team, my business and myself from the dangers and strife brought on by unethical behavior.”
Bergman now requires all board members to sign a clause in the voting rights agreement, which provides for the removal of any board member who sexually harasses.
From the ground up:
In 2016 when she was cultivating her board, Bergman wanted to ensure her own safety and control as a female founder. She explains: “I didn’t want to be in a situation like I’ve been in before where someone in a position of power is treating me disrespectfully in one of the worst possible ways, and I can’t do anything about it.”
While preparing her fledgling company’s by-laws, Bergman asked her attorney to write an “escape mechanism” into her company’s legal and cultural architecture. This clause renders sexual harassment cause for board removal, on par with fraud, embezzlement or breach of fiduciary duty. Bergman and her attorney were surprised to find no legal precedent, making her possibly the only female founder to have implemented such a clause.
While Bergman was initially apprehensive about discussing the clause with board prospects, she has been pleased to find them supportive. Male and female board members all indicated that they feel safer working with an organization that clearly articulates expectations and legal consequences.
Bergman’s preemptive clause is the type of proactivity companies need. We create healthy professional cultures by defining our values and instilling them systematically. Leaving gaps is inclined to serve harassers who find opportunity in ambiguity. Building environments where leaders clearly state and reinforce values and expectations removes that opportunity.
Anatomy of an “escape mechanism”
This is how the clause functions if triggered: an allegation of sexual harassment against a board member must be submitted by any officer or director to the company’s external legal counsel. Due process requires the company’s external legal counsel to conduct a high-level inquiry.
This clause seeks to avoid protracted litigation by restricting the inquiry to no longer than 30 days between the notice of the allegation and the delivery of the information to determine if there is a reasonable probability that sexual harassment has occurred. Such an abbreviated timeframe is fair to both the complainant and the alleged harasser.
Counsel presents its preliminary analysis to the directors no less than five days prior to issuing the final determination. Counsel delivers a final determination to the Board as to whether there is in fact a reasonable probability that the board member was involved in sexual harassment. Counsel must remove and replace the board member upon an affirmative determination.
The business case for safety
Harassment can happen anywhere in an organization from the c-suite down, and if not kept in check, can rapidly create a work environment that is toxic, emotionally draining and performance hindering for everyone. Women face the brunt of this, and it not only alienates them, but bleeds productivity from within, causing costly turnover and chaos.
Sexual harassment claims can also lead to bad press, which can magnify quickly on social media. Recent campaigns including #GrabYourWallet, #DeleteUber, #BoycottUnderArmour and #BoycottStarbucks have all had a significant financial impact on brands. The Atlantic, for example, reported that roughly 200,000 customers supported the #DeleteUber campaign, denouncing the culture of sexual harassment that became widely publicized.
Allowing bad actors to operate within your company, and to further objectives that run contrary to diversity, puts the company at risk.
Culture co-creators
Industries including news media, tech, and entertainment have emerged as harbors for bad actors and particularly perilous for female employees. What shaped these predatory cultures? How do we ensure that the mores of “bro cultures” are dismantled and not given oxygen to regenerate?
Amelia Ransom, Sr. Director, Engagement & Diversity, Avalara points out: “Is HR accountable for you not being harassed at work? No. The person who harasses you is accountable for you being harassed at work. Is your company responsible for eliminating people who harass people at work? Absolutely. They can use HR as that vehicle, but they should use other leaders as that vehicle as well, and that should be part of the culture.”
Creating inclusive workplaces primes all employees for peak performance. Leadership must champion that value. HR doesn’t own culture; leadership owns culture. This is why Bergman’s clause is so valuable: it takes preemptive steps to protect stakeholders’ safety by launching a specific remedy at the most senior level.
Cultural values can’t only come from HR. This won’t be nearly as effective as if it comes from the CEO. This sets a broad cultural tone that trickles down.
Additional preemptive strategies
When leadership is onboard to uphold cultural values, HR can implement them. Those who manage day-to-day operations are key cultural ambassadors who champion those company values. Building diverse teams is one important way they enact this work.
To that end, seek leaders who promote equity. Mandate workplace diversity-related questions for recruitment and promotions; for example: “How would you respond to an employee who tells you that she is upset and uncomfortable about working with a certain male employee?”
Additionally, pose behavioural questions such as:
“What do you do if you witness subtle innuendos or inappropriate comments?”
“Describe a situation where you resolved workplace/ personality conflict?”
Some other ideas for building inclusive cultures: Provide annual refreshers on what makes the workplace fun for all employees without intruding on the boundaries of any employees. You want employees, especially managers and senior leaders to recognize what behaviors are acceptable at work, and which ones cross the line. Bergman’s rule of thumb for recognizing this line: “If you wouldn’t do it or say it to a customer, don’t do it here.”
Lessons learned
Even in the wake of #MeToo, companies continue to struggle with scaling a healthy, inclusive culture. Time and time again we see companies fail to prevent sexual harassment and discrimination, and fail to act appropriately when concerns are raised, perpetuating a trust gap with HR.
To successfully transform their cultures, leaders need to put necessary safeguards in place at their company to get ahead of the problem, and take preemptive steps to bolster transparency and establish a space where employees feel safe to voice their concerns. Even as sexual harassers are disciplined, fired from their jobs, investigated by police or, in the most extreme cases, convicted of criminal acts, the culture gaps remain.
So it is incumbent upon executives to fill gaps that once created opportunities for harassers with information for advocates. This way, safety and wellness are built into workplace culture and are guaranteed from day one. We all deserve that.
Co-authored by Amy Lee and Mikaela Kiner